IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
NORTH CAROLINA STATE CONFERENCE
OF THE NAACP; EMMANUEL BAPTIST
CHURCH; COVENANT PRESBYTERIAN
CHURCH; BARBEE’S CHAPEL MISSIONARY
BAPTIST CHURCH, INC.; ROSANELL
EATON; ARMENTA EATON; CAROLYN
COLEMAN; JOCELYN FERGUSON-KELLY;
FAITH JACKSON; MARY PERRY; and
MARIA TERESA UNGER PALMER,
Defendants.
__________________________________
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LEAGUE OF WOMEN VOTERS OF NORTH
CAROLINA; A. PHILIP RANDOLPH
INSTITUTE; UNIFOUR ONESTOP
COLLABOARATIVE; COMMON CAUSE NORTH
CAROLINA; GOLDIE WELLS; KAY
BRANDON; OCTAVIA RAINEY; SARA
STOHLER; and HUGH STOHLER,
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Plaintiffs,
v.
PATRICK LLOYD MCCRORY, in his
official capacity as Governor of
North Carolina; KIM WESTBROOK
STRACH, in her official capacity
as Executive Director of the
North Carolina State Board of
Elections; RHONDA K. AMOROSO,
in her official capacity as
Secretary of the North Carolina
State Board of Elections; JOSHUA
D. MALCOLM, in his official
capacity as a member of the North
Carolina State Board of Elections;
JAMES BAKER, in his official
capacity as a member of the North
Carolina State Board of Elections;
and MAJA KRICKER, in her official
capacity as a member of the North
Carolina State Board of Elections,
1:13CV658
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 1 of 485
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and
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LOUIS M. DUKE; ASGOD BARRANTES;
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JOSUE E. BERDUO; CHARLES M. GRAY; )
NANCY J. LUND; BRIAN M. MILLER;
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BECKY HURLEY MOCK; MARY-WREN
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RITCHIE; LYNNE M. WALTER; and
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EBONY N. WEST,
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Plaintiff-Intervenors,
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v.
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THE STATE OF NORTH CAROLINA;
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JOSHUA B. HOWARD, in his official )
capacity as a member of the State )
Board of Elections; RHONDA K.
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AMOROSO, in her official capacity )
as a member of the State Board of )
Elections; JOSHUA D. MALCOLM, in
)
his official capacity as a member )
of the State Board of Elections;
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PAUL J. FOLEY, in his official
)
capacity as a member of the State )
Board of Elections; MAJA KRICKER, )
in her official capacity as a
)
member of the State Board of
)
Elections; and PATRICK L.
)
MCCRORY, in his official capacity )
as the Governor of the State of
)
North Carolina,
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Defendants.
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__________________________________ )
Plaintiffs,
UNITED STATES OF AMERICA,
Plaintiff,
v.
THE STATE OF NORTH CAROLINA;
THE NORTH CAROLINA STATE BOARD
OF ELECTIONS; and KIM W. STRACH,
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1:13CV660
1:13CV861
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 2 of 485
in her official capacity as
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Executive Director of the North
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Carolina State Board of Elections, )
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Defendants.
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__________________________________ )
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 3 of 485
TABLE OF CONTENTS
I.
FINDINGS OF FACT.......................................... 4
A.
B.
North Carolina Voting Laws........................... 4
1.
Voter ID........................................ 4
2.
Early Voting.................................... 5
3.
Out-of-Precinct Provisional Voting............. 10
4.
SDR............................................ 13
5.
Pre-registration............................... 15
Post-2011 Legislation............................... 16
1.
Introduction of HB 589......................... 17
2.
Revision of HB 589............................. 21
3.
Enactment of HB 836............................ 34
C.
Procedural History.................................. 43
D.
Evidence of Voter Experience Under Current Law...... 50
1.
Voter ID....................................... 51
a.
Voter Education about the Voter-ID
Requirement Prior to the Reasonable
Impediment Exception...................... 51
b.
Voter Education After Enactment of the
Reasonable Impediment Exception........... 56
c.
Voters’ Experience in Acquiring Qualifying
ID........................................ 68
d.
Evidence of North Carolina Voters Without ID
.......................................... 82
e.
Availability of the Reasonable Impediment
Exception................................. 95
2.
Change in the Early-Voting Schedule........... 125
3.
Elimination of SDR............................ 152
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 4 of 485
E.
II.
4.
Elimination of OOP Provisional Voting......... 176
5.
Elimination of Pre-Registration............... 184
6.
Other Challenged Provisions................... 190
7.
2014 Data..................................... 194
Testimony of Other Experts......................... 197
CONCLUSIONS OF LAW...................................... 197
A.
Section 2 of the VRA............................... 197
1.
The Law of Vote Denial and Abridgement Claims. 197
2.
The Totality of the Circumstances & Gingles... 219
a.
The Success of the Prior Practices in
Fostering Minority Political Participation
......................................... 220
b.
History of Official Discrimination....... 227
c.
Racially-Polarized Voting................ 235
d.
Enhancing the Opportunity for Discrimination
......................................... 237
e.
Candidate Slating Process................ 238
f.
Continuing Effects of Discrimination
Hindering Participation.................. 238
g.
Racial Appeals in Campaigning............ 257
h.
Minority Electoral Success............... 259
i.
Responsiveness of Elected Officials...... 261
j.
Tenuousness of the State’s Justifications 263
i.
Voter ID............................ 264
ii.
Early Voting........................ 276
iii. SDR................................. 281
iv.
OOP Voting.......................... 308
ii
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 5 of 485
v.
3.
Pre-Registration.................... 317
Equality of Opportunity and Social and Historical
Conditions.................................... 322
a.
Voter ID................................. 325
b.
Early Voting............................. 339
c.
SDR...................................... 342
d.
OOP Voting............................... 356
e.
Pre-registration......................... 366
f.
Cumulative Effect........................ 369
4.
Discriminatory Result: Conclusion............. 373
5.
Discriminatory Intent......................... 377
6.
Additional Problems with the § 2 Results Claim 412
B.
“Traditional” Fourteenth and Fifteenth Amendment
Claims............................................. 426
C.
Anderson-Burdick Claim............................. 426
1.
Voter ID...................................... 432
2.
Early Voting.................................. 435
3.
SDR........................................... 439
4.
OOP........................................... 443
5.
Pre-registration.............................. 448
6.
CBOE Discretion............................... 452
7.
Poll Observers and Challengers................ 453
8.
Cumulative Effect of Provisions............... 454
D.
Twenty-Sixth Amendment Claim....................... 456
E.
Remedy............................................. 465
III. CONCLUSION.............................................. 467
iii
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 6 of 485
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
In these related cases, Plaintiffs seek to permanently enjoin
Defendants from implementing various provisions of North Carolina
Session Law 2013-381 (“SL 2013-381”), an omnibus election-reform
law, as amended by Session Law 2015-103 (“SL 2015-103”). 1
Plaintiffs are the United States of America (the “United
States”) in case 1:13CV861, the North Carolina State Conference of
the NAACP and several organizations and individual plaintiffs (the
“NAACP Plaintiffs”) in case 1:13CV658, and the League of Women
Voters of North Carolina along with several organizations and
individuals
(the
“League
Plaintiffs”)
in
case
1:13CV660.
Additionally, the court allowed a group of “young voters” and
others
(the
1:13CV660.
Plaintiffs
“Intervenor
Plaintiffs”)
to
(Doc. 62 in case 1:13CV660.)
raise
claims
under
the
intervene
in
case
Considered together,
Fourteenth,
Fifteenth,
and
Twenty-Sixth Amendments to the United States Constitution as well
as § 2 of the Voting Rights Act of 1965 (“VRA”), 52 U.S.C. § 10301
(formerly 42 U.S.C. § 1973).
(Doc. 365 in case 1:13CV861; Doc.
384 in case 1:13CV658; Docs. 1 & 63 in case 1:13CV660.)
The United
1
The parties sometimes refer to the challenged law as “House Bill 589,”
its original designation by the North Carolina General Assembly. The
final product, as a duly-enacted law passed by both chambers of the
General Assembly and signed by the governor, will be referred to as
Session Law 2013-381.
Prior to passage, the bill will be referred to
as HB 589.
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 7 of 485
States also moves for the appointment of federal observers to
monitor future elections in North Carolina pursuant to § 3(a) of
the VRA, 52 U.S.C. § 10302(a) (formerly 42 U.S.C. § 1973a(a)).
(Doc. 365 at 33.) 2
Defendants are the State of North Carolina,
Governor Patrick L. McCrory, the State Board of Elections (“SBOE”),
and several State officials acting in their official capacities.
The
record
evidentiary
is
hearing
extensive.
and
The
argument
court
beginning
held
July
a
7,
four-day
2014,
on
Plaintiffs’ motion for preliminary injunction, which evidence is
now part of the trial record.
Fed. R. Civ. P. 65(a)(2).
Fifteen
days of trial on the merits were conducted from July 13 through
31, 2015.
An additional six days of trial on the voter photo
identification (“ID”) provisions of the law were conducted from
January 25 through February 1, 2016.
The court has considered
testimony of twenty-one expert witnesses and 112 fact witnesses.
The record consists of more than 11,000 pages from the preliminary
injunction phase, in excess of 12,000 pages from the July trial,
and over 2,500 additional pages from the January trial. 3
As can
2
Because of the duplicative nature of the filings in these three cases,
the court will refer only to the record in case 1:13CV861 except where
necessary to distinguish the cases. Where the court has cited to docket
entries, (e.g., Doc. 346 (Plaintiffs’ proposed conclusions of law and
findings of fact)), pinpoint cites are to the CM/ECF pagination. Where
the court cites to exhibits by the parties, pinpoint cites are to the
exhibit’s internal pagination where possible. This includes exhibits
containing deposition designations.
3
This includes all expert reports, to which the parties waived hearsay
2
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 8 of 485
be seen from the length of this memorandum opinion, merely trying
to concisely state the court’s findings has presented a monumental
challenge.
This case presents important questions as it tests North
Carolina’s
newly-enacted
voter
photo-ID
requirement
and
the
State’s modification or elimination of certain voting procedures
not contemplated by the State a little more than a decade ago:
seventeen days of in-person early voting before Election Day, sameday registration, voting provisionally on Election Day in an
unassigned precinct, and pre-registering to vote as early as age
sixteen.
Under both the Elections Clause of, and the Tenth
Amendment to, the United States Constitution, such decisions are
traditionally reserved to the States, but they are subject to other
constitutional
and
congressional
limitations.
The
principal
question in these cases is whether the North Carolina General
Assembly
relatively
imposed
a
voter-ID
requirement
recently-developed
voting
and
altered
procedures
–
these
deemed
“conveniences” and “fail-safes” by some of Plaintiffs’ own experts
– based on race or, even if not, in a manner that presents an
unlawful discriminatory burden on voters.
After
careful
consideration
of
the
complete
record
and
pursuant to Rule 52(a) of the Federal Rules of Civil Procedure,
objections, but does not include the trial transcript or Plaintiffs’
Exhibit 646, which is a database with 39,912 pages.
3
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the court enters the following findings of fact - based upon an
evaluation
of
the
evidence,
including
the
credibility
of
witnesses, and the inferences that the court has found reasonable
to be drawn therefrom - and conclusions of law.
To the extent any
factual statement is contained in the conclusions of law, it is
deemed a finding of fact as well.
I.
FINDINGS OF FACT
A.
North Carolina Voting Laws
The
provisions
of
North
Carolina
SL
2013-381
at
issue
establish a voter-ID requirement and repeal certain voting and
registration mechanisms enacted since 1999.
the
purposes
and
effect
of
the
current
An understanding of
regime
requires
an
understanding of the previous laws, including their origin and
history.
See League of Women Voters of N.C. v. North Carolina,
769 F.3d 224, 242 (4th Cir. 2014) (“League”) (noting that “North
Carolina’s previous voting practices are centrally relevant”).
Each modified or removed voting and registration mechanism was
enacted while Democrats controlled both houses of North Carolina’s
General Assembly and its governorship, which they held until 2011.
Because North Carolina was a covered jurisdiction under § 5 of the
VRA, each change required approval by the United States Department
of Justice (“DOJ”).
1.
Voter ID
Prior to 2016, North Carolina relied on a system of signature
4
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attestation to prevent voter fraud.
Under this system, poll
workers — as the primary gatekeepers to voter fraud — would ask
the name and address of voters presenting to vote in person.
407 at 43.)
(Doc.
If the poll worker was able to locate a registration
for the name and address provided, the voter was required to sign
an authorization to vote (“ATV”) form attesting that he was the
person under whose registration he sought to vote and that he
currently resided at the address of registration.
83; Plaintiffs’ Exhibit (“Pl. Ex.”) 1056.)
(Doc. 410 at
The ATV form warned
voters that “fraudulently or falsely completing this form is a
Class I Felony.”
(Pl. Ex. 1056.)
Although the SBOE maintained
voters’ signatures as a result of registration forms, (Pl. Ex.
212A), poll workers did not have access to the signatures, either
during
early
voting
or
on
Election
Day,
(Doc.
414
at
123).
Accordingly, signatures were not verified at the polling place
and, unless the poll worker knew the voter, the poll worker had
very limited means of determining whether the voter was the same
person as the registrant.
2.
(See id.)
Early Voting
Prior to 1973, North Carolina required all voters to cast
their ballot on Election Day or to apply for an absentee ballot.
See N.C. Gen. Stat. § 163-227 (1972).
In 1973, the General
Assembly passed legislation that permitted voters to participate
5
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in “one-stop” “early voting” 4 for a period of sixty days before
Election Day, but only if they provided a statutorily-acceptable
excuse (e.g., absence from the county, sickness, or disability)
and
obtained
(“CBOE”). 5
their
ballot
from
the
county
board
of
election
1973 N.C. Sess. Law 536, § 1.
In 1979, the General Assembly reduced the one-stop earlyvoting period from sixty days to thirty days.
799, § 1.
1979 N.C. Sess. Law
But see N.C. Gen. Stat. § 163-227.3 (providing that,
unless otherwise authorized, a CBOE shall provide absentee ballots
for voting by mail “60 days prior to the statewide general election
in even-numbered years”).
Then, as now, a voter had to be
registered at least twenty-five days before the election for which
the absentee ballot was being offered.
See N.C. Gen. Stat. § 163-
82.6(c); N.C. Gen. Stat. § 163-67 (1979) (making the registration
cut-off twenty-one days before Election Day, excluding Saturdays
4
“One-stop” refers to the procedure allowing voters to request and cast
an absentee ballot at the same time. “Early voting” describes in-person
absentee voting at designated locations before Election Day. Absentee
mail-in voting, like early in-person voting, is a form of “absentee
voting.” Even when a voter shows up in person, he is simply applying
for and completing an absentee voting application and ballot at the same
time. Mail-in voting breaks this into two steps: the voter applies for
a no-excuse absentee ballot, and, after the local CBOE mails it to the
voter, the voter returns the completed absentee ballot to the CBOE,
either by mail or in person.
5
Unlike the form of absentee voting that existed prior to 1973, all
actions necessary for the one-stop early-voting ballot had to “be
performed in the office of the board of elections.” 1973 N.C. Sess. Law
536, § 1.
6
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and Sundays).
This law provided that a ballot executed at a CBOE
be completed in a voting booth or private room.
1979 N.C. Sess.
Law 799, § 2.
In 1999 (effective January 1, 2000), on a vote almost entirely
along
party
lines, 6
the
General
Assembly
removed
the
excuse
requirement for “one-stop” voting in North Carolina’s even-year
general elections, thus establishing “no-excuse” early voting.
1999 N.C. Sess. Law 455, §§ 1, 6; (Pl. Ex. 46 at 25 (chronicling
partisan voting)).
It also permitted a CBOE, upon unanimous CBOE
vote and the approval of the SBOE, to open additional early-voting
sites beyond the one site at the CBOE.
§ 6.
1999 N.C. Sess. Law 455,
Thus, a registered voter could present herself at the CBOE
or another designated site in her county of residence “[n]ot
earlier than the first business day after the twenty-fifth day
before an election . . . and not later than 5:00 p.m. on the Friday
prior to that election” to cast her ballot.
Id.
Because the law
permitted only weekday operations, see id. (amending N.C. Gen.
6
The vote in the Senate was 36-10, with four Republicans voting with
the majority, and 60-53 in the House with all Republicans joined by one
Democrat in opposition. (Pl. Ex. 46 at 25.) The court may take judicial
notice of the legislative history of the laws at issue. See Fed. R.
Evid. 201; see e.g., Hall v. Louisiana, No. 12-00657, 2015 WL 1383532,
at *3 (M.D. La. Mar. 23, 2015) (citing Territory of Alaska v. Am. Can
Co., 358 U.S. 224, 226–27 (1959)) (taking judicial notice of the
legislative history of a bill in a voting rights case).
Plaintiffs
ignore this history of North Carolina’s early voting, especially the
partisan opposition to changing early voting to “no-excuse.” (Cf. Doc.
346 at 22 (noting simply that later amendments to early voting received
“substantial bipartisan support”)).
7
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 13 of 485
Stat. § 163-227.2(f)), this offered registered voters fifteen days
of early voting, id.
In 2000, the General Assembly enacted SL 2000-136, which
allowed CBOEs to petition the SBOE for approval when they are
unable
to
reach
unanimous
agreement
additional early-voting sites.
as
to
the
location
2000 N.C. Sess. Law 136, § 2.
of
The
law empowered the SBOE, on a simple majority vote, to approve
additional sites based on the consideration of the “partisan
interests of that county,” among other factors. Id. (not requiring
SBOE unanimity).
Because the governor controls appointments to
the SBOE, which in turn appoints the members of the CBOEs, both
boards are effectively controlled by the same political party as
the governor.
See N.C. Gen. Stat. § 163-19 (giving the governor
power to appoint SBOE members but requiring that “[n]ot more than
three members of the [five-member] Board shall be members of the
same
political
party”);
N.C.
Gen.
Stat.
§
163-30
(providing
appointment power of CBOE members to the SBOE and requiring that
“[n]ot more than two members of the [three-member CBOE] shall
belong to the same political party”). 7
Thus, this change injected
partisan considerations into the location of additional early-
7
As detailed infra, the trial evidence demonstrated that this resulted
in early-voting sites being situated in areas more favorable to persons
who tended to vote for Democratic candidates. (See, e.g., Defendants’
Exhibit (“Def. Ex.”) 212A at 14–16, 19 (finding that the placement of
and hours offered for early-voting sites favor Democrats over
Republicans).)
8
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 14 of 485
voting sites.
In 2001, the General Assembly expanded no-excuse early voting
to all elections and absentee ballots.
§ 1.
2001 N.C. Sess. Law 337,
With votes split largely along party lines in the North
Carolina House of Representatives, but with bi-partisan support in
the Senate, 8 the General Assembly also amended the early-voting
period so that voters could appear at the CBOE office to vote
“[n]ot earlier than the third Thursday before an election . . .
and not later than 1:00 P.M. on the last Saturday before that
election.”
2001 N.C. Sess. Law 319, § 5(a).
Under this revision,
CBOEs were granted discretion to extend the closing time on that
final Saturday to 5:00 p.m. and, upon unanimous agreement (or in
its absence, upon approval of the SBOE), to maintain early-voting
hours during the evening or on weekends throughout the earlyvoting period. 9
Id. § 5(b).
In sum, these 2001 changes, effective January 1, 2002, moved
the start of early voting three days closer to Election Day,
reduced the number of required days of early voting to twelve and
one-half days, but permitted an expansion up to seventeen days
upon unanimous CBOE agreement.
No one criticized or challenged
8
The final House vote was 60-54, with six Democrats not voting but four
Republicans joining the Democratic majority. (Pl. Ex. 47 at 16.) The
Senate’s final vote was 46-2. (Id.)
9
CBOEs remained free to open additional early-voting sites other than
the CBOE office by unanimous vote or, in its absence, upon approval of
the SBOE upon petition. N.C. Gen. Stat. § 163-227.2(g) (2001).
9
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 15 of 485
the reduced minimum or other changes.
3.
Out-of-Precinct Provisional Voting
The next voting change, chronologically, was the advent of
out-of-precinct (“OOP”) provisional voting, whose origins in North
Carolina can be traced to Congress’ passage in 2002 of the Help
America Vote Act (“HAVA”), 52 U.S.C. §§ 20901–21145 (formerly 42
U.S.C. §§ 15301-15545), which in turn was passed in the wake of
evidence of irregularities in the 2000 presidential election.
HAVA, in part, required States to offer provisional ballots to
individuals on Election Day who seek to vote and claim to be
registered and eligible to vote for federal office, but who do
“not appear on the official list of eligible voters for the polling
place or an election official asserts that the individual is not
eligible to vote.”
See 52 U.S.C. § 21082(a).
However, HAVA only
requires such provisional ballots to be counted “in accordance
with State law.”
Id. § 21082(a)(4).
Thus, a provisional ballot
must be counted only if State law authorizes it.
In 2003, a bill was introduced in the General Assembly titled,
“Help America Vote Act Compliance.”
Reg. Sess. (N.C. 2003).
H.B. 842, 2003 Gen. Assemb.,
Its stated purpose was “to ensure that
the State of North Carolina has a system for all North Carolina
elections
that
complies
with
elections set forth in” HAVA.
It
was
approved
the
requirements
for
federal
See 2003 N.C. Sess. Law 226, § 1.
unanimously.
As
to
provisional
ballots
10
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specifically,
the
law
provided
that
the
CBOE
shall
count
a
provisional ballot “for all ballot items on which it determines
that the individual was eligible under State or federal law to
vote.”
Id. § 15(5).
Soon after, the SBOE claimed authority to count provisional
ballots cast outside the voter’s correct precinct, and several
affected Republican candidates raised a legal challenge.
See In
re Election Protest of Fletcher, 175 N.C. App. 755, 756, 625 S.E.2d
564, 565 (2006) (noting the challenger’s party affiliation).
The
North Carolina Supreme Court unanimously held that the counting of
such
ballots
violated
State
law
and
SBOE
regulations,
which
required voters to cast ballots in their assigned precinct.
James
v. Bartlett, 359 N.C. 260, 267-70, 607 S.E.2d 638, 642-44 (2005)
(“The plain meaning of [N.C. Gen. Stat. § 163–55 (2003)] 10 is that
voters must cast ballots on election day in their precincts of
residence.”). In reaching its decision, the North Carolina Supreme
Court recognized several “advantages” of the precinct system and
10
N.C. Gen. Stat. § 163-55 provided (emphasis added):
Every person born in the United States, and every person who
has been naturalized, and who shall have resided in the State
of North Carolina and in the precinct in which he offers to
register and vote for 30 days next preceding the ensuing
election, shall, if otherwise qualified as prescribed in this
Chapter, be qualified to register and vote in the precinct in
which he resides: Provided, that removal from one precinct to
another in this State shall not operate to deprive any person
of the right to vote in the precinct from which he has removed
until 30 days after his removal.
11
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in-precinct voting, which it observed were “woven throughout the
fabric of [the State’s] election laws,” id. at 267, 607 S.E.2d at
642 (citing statutes), including that
it caps the number of voters attempting to vote in the
same place on election day; it allows each precinct
ballot to list all of the votes a citizen may cast for
all pertinent federal, state, and local elections,
referenda, initiatives, and levies; it allows each
precinct ballot to list only those votes a citizen may
cast, making ballots less confusing; it makes it easier
for election officials to monitor votes and prevent
election fraud; and it generally puts polling places in
closer proximity to voter residences.
Id. at 271, 607 S.E.2d at 644–45 (quoting Sandusky Cty. Democratic
Party
v.
Blackwell,
curiam)).
387
F.3d
565,
569
(6th
Cir.
2004)
(per
The court also noted:
If voters could simply appear at any precinct to cast
their ballot, there would be no way under the present
system to conduct elections without overwhelming delays,
mass confusion, and the potential for fraud that robs
the validity and integrity of our elections process.
Id. at 270, 607 S.E.2d at 644.
found
that
“it
is
but
a
The North Carolina Supreme Court
perfunctory
requirement
that
voters
identify their proper precinct and appear within that precinct on
election day to cast their ballots.”
Id. at 271, 607 S.E.2d at
645.
In response to James, the General Assembly — on a purely
partisan division — immediately passed SL 2005-2, 11 amending N.C.
11
The final votes were 29-21 in the Senate and 61-54 in the House. (Def.
Ex. 168.)
12
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 18 of 485
Gen. Stat. § 163-55 to remove the requirement that voters appear
in the proper precinct on Election Day in order to vote.
N.C. Sess. Law 2, § 2.
2005
The General Assembly went further, however,
to require that the law apply retroactively to the 2004 election,
thus ensuring electoral victory for the Democratic candidates in
the elections challenged in James.
Id. §§ 1-14.
And as “extra
insurance” against judicial intervention, the Democratic majority
put in place a procedure mandating that the legislature - and not
the courts - would decide contested elections for State-wide
offices.
(Pl. Ex. 46 at 30.)
The General Assembly also placed in
the law a finding that it had “take[n] note” that African Americans
disproportionately used OOP voting on Election Day in November
2004.
2005 N.C. Sess. Law. 2, § 1.
4.
The
SDR
National
Voter
Registration
Act
(“NVRA”),
52
U.S.C.
§ 20507(a)(1) (formerly 42 U.S.C. § 1973gg-6(a)(1)), permits a
State to set a registration cut-off of thirty days before an
election.
North Carolina extends that deadline by five days such
that a person is required to have registered to vote at least
twenty-five days before an election in order to cast a ballot.
N.C. Gen. Stat. § 163-82.6(c).
In July 2007, the General Assembly — split almost entirely
along
party
lines
—
passed
legislation
permitting
voters
to
register and vote at early-voting sites, which Governor Michael
13
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 19 of 485
Easley signed into law. 12
The law provided that “an individual who
is qualified to register to vote may register in person and then
vote at [an early-voting] site in the person’s county of residence
during the period for [early] voting provided under [§] 163-227.2.”
2007 N.C. Sess. Law 253, § 1.
The law required a prospective voter
to complete a voter registration form and produce documentary proof
of her current name and address, either through a North Carolina
driver’s license, a photo ID from a government agency, or a HAVA
document. 13
Id.
If she elected to vote immediately, the voter
could “vote a retrievable absentee ballot as provided in [§] 163227.2 immediately after registering.”
Id.
Within two business
days, the CBOE was required, in conjunction with the SBOE, to
verify the voter’s driver’s license or social security number
(“SSN”), update the voting database, proceed to verify the voter’s
proper address, and count the vote unless the CBOE determined that
the applicant was not qualified to vote in accordance with the
provisions of that chapter.
Id.
As will be seen, this meant that,
as a practical matter votes were counted even though the voter
registered and voted at the CBOE too close to Election Day to
12
The final votes were 69-47 in the House, with three Republicans joining
the Democratic majority, (Def. Ex. 169), and 34-15 in the Senate, with
four Republicans joining the Democratic majority, (Def. Ex. 170).
13 The following constitute a valid “HAVA document”: “a current utility
bill, bank statement, government check, paycheck, or other government
document” showing the voter’s “name and address.” N.C. Gen. Stat. § 163166.12(a).
14
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permit the CBOE to comply with North Carolina’s preexisting mail
verification system for voter registration.
See N.C. Gen. Stat.
§ 163-82.7.
5.
Pre-registration
Ever since the ratification of the Twenty-Sixth Amendment in
1971, a person who would be eighteen years-old on the next Election
Day could register to vote in North Carolina, which included the
primary for that election even if he would not be eighteen on the
date of the primary.
N.C. Gen. Stat. §§ 163-55(a)(1), 163-59.
In
1993, a bill to permit sixteen- and seventeen-year-olds to “preregister” was introduced but failed to gain passage.
(Pl. Ex. 46
at 23.)
In 2009, a bipartisan General Assembly passed SL 2009-541,
which allowed for “pre-registration” of sixteen- and seventeenyear-olds
election. 14
who
would
2009
not
N.C.
be
eighteen
Sess.
Law
before
541,
§
the
7(a).
next
general
With
pre-
registration, “[a] person who is at least 16 years of age but will
not be 18 years of age by the date of the next election and who is
otherwise qualified to register may preregister to vote and shall
be automatically registered upon reaching the age of eligibility
following verification of the person’s qualifications and address
in accordance with [§] 163-82.7.”
14
Id.
Session Law 2009-541 also
The final votes were 32-3 in the Senate and 107-6 in the House.
Ex. 46 at 33.)
(Pl.
15
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mandated that CBOEs conduct pre-registration drives.
B.
Id. § 16(a).
Post-2011 Legislation
In 2011, Republicans gained majorities in both houses of the
General Assembly, yet the Democrats continued to control the
governorship.
With that shift, however, efforts to alter several
of the recently-enacted election laws began.
Those included bills
to reduce early voting and end SDR and pre-registration. See e.g.,
H.B. 658, 2011 Gen. Assemb., Reg. Sess. (N.C. 2011) (reducing early
voting by a week); 15 S.B. 714, 2011 Gen. Assemb., Reg. Sess. (N.C.
2011) (requiring all satellite early-voting sites to remain open
at least the same number of days per week and the same number of
hours per day as the CBOE site); S.B. 657, 2011 Gen. Assemb., Reg.
Sess. (N.C. 2011) (eliminating a week of early voting and any
Sunday voting); S.B. 47, 2011 Gen. Assemb., Reg. Sess. (N.C. 2011)
(eliminating a week of early voting, SDR, and straight-ticket
voting); S.B. 657, 2011 Gen. Assemb., Reg. Sess. (N.C. 2011)
(eliminating a week of early voting, Sunday voting, SDR, and preregistration).
Most prominent among those proposals was H.B. 351,
2011 Gen. Assemb., Reg. Sess. (N.C. 2011), entitled “Restore
Confidence
requirement.
in
Government,”
which
introduced
a
photo-ID
HB 351 was debated in and passed North Carolina’s
15 S.B. 658 failed when Democratic SBOE Executive Director Gary Bartlett
issued a memorandum on the day of the third reading of the bill, stating
that he believed that reducing early voting would actually cost more.
(Pl. Ex. 46 at 35.)
16
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 22 of 485
House and Senate, but was vetoed by Governor Beverly Perdue.
Ex. 46 at 35.)
(Pl.
According to a Plaintiffs’ expert in this case,
“All of the votes were almost pure partisan splits.”
(Id.)
In 2012, Republicans gained control of the governorship and,
in 2013, control of both houses.
After more than a century since
controlling all offices, they renewed attempts to change North
Carolina’s election administration.
In 2013, several bills were
introduced to reduce the early-voting period, eliminate SDR, and
alter other procedures.
See, e.g., H.B. 913, 2013 Gen. Assemb.,
Reg. Sess. (N.C. 2013) (eliminating SDR and enhancing observer
rights); S.B. 428, 2013 Gen. Assemb., Reg. Sess. (N.C. 2013)
(eliminating a week of early voting and SDR); S.B. 666, 2013 Gen.
Assemb., Reg. Sess. (N.C. 2013) (eliminating a week of early
voting, weekend
voting
hours,
and
SDR);
S.B.
721,
2013
Gen.
Assemb., Reg. Sess. (N.C. 2013) (implementing voter ID and reducing
early voting to six days); H.B. 451, 2013 Gen. Assemb., Reg. Sess.
(N.C. 2013) (eliminating a week of early voting, Sunday voting,
SDR, and straight-ticket voting).
1.
Introduction of HB 589
On March 12, 2013, the legislative process for SL 2013-381
began, with the North Carolina House Committee on Elections,
chaired
by
Republican
Representative
public hearings on voter ID.
David
R.
(See Pl. Ex. 127.)
Lewis,
holding
Over seventy-
five citizens from a wide variety of organizations spoke before
17
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 23 of 485
the committee.
(Id. at 2–5.)
The next day, the committee met and
considered the testimony of five individuals representing a wide
variety of organizations, including the Brennan Center for Justice
and the Heritage Foundation.
(See Pl. Ex. 128.)
One of the
speakers was Allison Riggs, counsel of record for the League
Plaintiffs
in
case
1:13CV660,
who
appeared
Southern Coalition for Social Justice.
on
behalf
(Id. at 4.)
of
the
On April 3,
the committee heard from Ion Sancho, the Supervisor of Elections
for Leon County, Florida, who testified about Florida’s experience
when it reduced early-voting days in advance of the 2012 general
election.
(Pl. Ex. 129 at 61–62, 69–70, 78–79.)
Those public
hearings were not required by the North Carolina House’s internal
rules.
(Defendants’ Exhibit (Def. Ex.) 217 at 3); see H.R. 54,
2013
Gen.
Assemb.,
Reg.
Sess.
(N.C.
2013),
http://www.ncleg.net/Sessions/2013/Bills/House/PDF/H54v3.pdf
(last visited April 6, 2015) (hereinafter “H.R. 54”). 16
On April 4, HB 589 was introduced in the House.
105.)
(Pl. Ex.
The bill dealt mostly with the implementation of a voter-
ID requirement beginning in 2016 in portions titled the “Voter
Information Verification Act.” (Id. at 1–6, 11–12.) The remainder
of the bill dealt with the procedure for obtaining and voting mailin absentee ballots.
16
(Id. at 6–11.)
Fed. R. Evid. 201.
18
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Under House rules, legislation must pass three readings. 17
On
April 8, the bill passed “first reading” and was referred to the
House Committee on Elections.
(Pl. Ex. 121.)
The committee
subsequently held another public hearing on April 10, during which
over seventy-five citizens from across the political spectrum had
the opportunity to speak.
(Pl. Ex. 130.)
That same day, the
committee held another hearing during which the bill was discussed
and additional public comments were received.
(Pl. Ex. 545.)
The
committee further debated the bill and added amendments at a
meeting held on April 17.
(Pl. Ex. 546.)
to the House Committees on Finance.
The bill was referred
(Pl. Ex. 121.)
HB 589 advanced, as amended, from the various House committees
and was debated on the House floor on April 24.
547,
548.)
Three
amendments
were
adopted,
(Id.; Pl. Exs.
six
others
were
rejected, and the bill passed “second reading” on a roll-call vote
of 80-36. 18
(Pl.
Ex.
121;
Pl.
Ex.
548
at
177.)
The
bill
subsequently passed “third reading,” on a vote of 81-36, and was
passed by the House.
(Pl. Ex. 548 at 178.)
Five House Democrats
joined all present Republicans in voting for the voter-ID bill,
17
House Rule 41(a) states, “Every bill shall receive three readings in
the House prior to its passage.
The first reading and reference to
standing committee of a House bill shall occur on the next legislative
day following its introduction.” H.R. 54; Fed. R. Evid. 201.
18
House Rule 41(b) states: “No bill shall be read more than once on the
same day without the concurrence of two-thirds of the members present
and voting . . . .” H.R. 54.
19
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 25 of 485
(Pl. Ex. 122 (noting roll call vote on April 24 third reading);
Pl. Ex. 138 at 67–68, 77, 88), but none of the African American
members
of
the
Representative
nevertheless
House
Rick
supported
Glazier,
acknowledged
who
that
it,
(Pl.
strongly
“[f]or
a
Exs.
opposed
large
122,
154).
the
bill,
bill,”
HB
589
received up to this point “the best process possible” in the House,
one he characterized as “excellent.”
(Doc. 165 at 56-57; see also
Pl. Ex. 25 at 6.)
HB 589 was received in the North Carolina Senate the next
day, passed first reading, and was assigned to the Senate Rules
Committee.
(Pl. Ex. 121.)
on the bill.
The committee took no immediate action
The parties do not dispute that the Senate believed
at this stage that HB 589 would have to be submitted to the DOJ
for “pre-clearance” under § 5 of the VRA, 52 U.S.C. § 10304
(formerly 42 U.S.C. § 1973c), because many North Carolina counties
were “covered jurisdictions” under that section.
At that time,
however,
considering
the
United
States
Supreme
Court
challenge to the DOJ’s ability to enforce § 5.
was
a
So, the bill sat.
On June 25, the Supreme Court issued its decision in Shelby
County v. Holder, 133 S. Ct. 2612 (2013), declaring the formula
used
to
determine
the
§
5
covered
jurisdictions,
52
U.S.C.
§ 10303(b) (formerly 42 U.S.C. § 1973b(b)), to be unconstitutional.
The next day, Senator Thomas Apodaca, Republican Chairman of the
Rules Committee, publicly stated, “I think we’ll have an omnibus
20
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 26 of 485
bill coming out” and words to the effect that the Senate would
move ahead with the “full bill.”
(Pl. Exs. 81, 714.)
The contents
of the “omnibus bill” were not disclosed at the time.
HB 589
remained in the Senate Rules Committee without legislative action
until late July 2013.
2.
(Pl. Ex. 121.)
Revision of HB 589
A meeting of the Rules Committee was scheduled for July 23.
(See Pl. Exs. 121, 135, 202.)
The night before the Rules Committee
meeting, the revised version of HB 589, now fifty-seven pages in
length, was posted for the members on the Rules Committee website. 19
(Pl. Ex. 18A at 7–8 (declaration of Sen. Josh Stein); Pl. Ex. 107;
Doc. 164 at 111–12 (testimony of Sen. Dan Blue); Doc. 335 at 169–
72.)
The revised bill contained a number of changes and now
focused more broadly on election law reform.
Plaintiffs
have
characterized
the
bill
as
(See Pl. Ex. 107.)
a
“monster
voter
suppression law,” focusing on the fact that it emerged at fiftyseven pages.
However, in truth, most of HB 589’s changes – some
forty-two of the fifty-seven pages (74%) - have gone unchallenged
in
this
case.
The
changes
were
also
highlighted
for
the
convenience of the reader.
HB 589’s various unchallenged revisions, which claimed to
19 A version of HB 589 appears to have been distributed to members of the
Rules Committee who were present on July 18, 2013. (Doc. 134-4 at 3.)
It is not clear whether this version differed from that posted on the
website on July 22.
21
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 27 of 485
“reform”
North
standardizing
the
Carolina’s
process
election
for
law,
requesting
an
included:
absentee
(1)
ballot
through an absentee ballot request form created by the SBOE (Part
4); (2) expanding the public agencies offering voter registration
to include senior centers and parks and recreation services (Part
5); (3) making it illegal to compensate persons collecting voter
registrations based on the number of forms they submitted (Part
14);
(4)
requiring
biannual
efforts
by
the
SBOE
to
remove
ineligible voters from North Carolina’s voter rolls (Part 18); (5)
reducing the number of signatures required to become a candidate
in a party primary (Part 22); (6) deleting obsolete provisions
about the 2000 census (Part 27); (7) mandating that several matters
be referred for further study, including requiring the Joint
Legislative Oversight Committee to examine whether to maintain the
State’s current runoff system in party primaries (Part 28); (8)
eliminating the option of straight-ticket voting (voting for an
entire party rather than individual candidates) (Part 32); (9)
moving the date of the North Carolina presidential primary earlier
in the year (Part 35); (10) eliminating taxpayer funding for
appellate judicial elections (Part 38); (11) allowing funeral
homes to participate in canceling voter registrations of deceased
persons (Part 39); and (12) requiring provisional ballots to be
marked as such for later identification (Part 52).
(Pl. Ex. 107.)
The bill also changed the ordering of North Carolina’s ballots.
22
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Prior to 2013, while the candidates’ names were listed in random
order in primaries, Democratic candidates were always listed first
in the general election ballots.
(Doc. 341 at 165.)
altered the listing for general elections.
HB 589
(Pl. Ex. 107 at 43.)
The provisions challenged in the present lawsuit comprise
approximately fifteen of HB 589’s fifty-seven pages. 20
(See id.)
Of those, roughly nine pages contain the voter-ID requirement. 21
Many of the voter-ID provisions did not differ from those in the
old,
already
debated
version
of
the
bill:
The
new
changes
principally included the removal of certain government, state
university, and community college IDs from the acceptable list.
(Compare Pl. Ex. 105 at 2–3 (original bill filed in the House on
April 4, 2013), with Pl. Ex. 107 at 2 (version approved by the
Senate Rules Committee on July 23, 2013.)
The bill proposed that
the voter-ID requirement go into effect in 2016 but be implemented
through a “soft roll out,” whereby voters at the polls in 2014 and
2015 would be advised of the law’s requirement that they will need
a qualifying photo ID to vote beginning in 2016 and to permit them
time to obtain a free ID from the State.
(Pl. Ex. 107 at 14.)
20
Several of the challenged parts of SL 2013-381 simply remove references
to the old law, such as deleting terms like “preregistration.”
21
It is worth noting that, while this was the first time the Senators
had seen this bill, HB 351 had already been passed by the Senate two
years earlier. At least two of the Democratic Senators in the Rules
Committee (Sens. Martin Nesbitt and Stein) in 2013 were also Senators
when HB 351 passed.
23
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So, of the fifty-seven-page bill, nine pages related to the
voter-ID requirement, much of which was in the original version of
the
bill,
and
approximately
six
challenged provisions in this case.
pages
contained
the
other
Those are: (1) the reduction
of the period of early voting from seventeen to ten days; (2) the
elimination of SDR; (3) the prohibition on the counting of ballots
cast outside a voter’s correct voting precinct on Election Day
(“OOP voting”); (4) the allowance for up to ten at-large poll
observers within each county; (5) the ability of any registered
voter in the county, as opposed to precinct, to challenge a ballot;
(6) the elimination of the discretion of CBOEs to keep the polls
open
an
additional
hour
on
Election
Day
in
“extraordinary
circumstances”; and (7) the elimination of “pre-registration” of
sixteen- and seventeen-year-olds who will not be eighteen by the
next general election.
Several legislators reported they had been caught off guard
by these changes.
(See, e.g., Pl. Ex. 18A at 8 (Sen. Stein); Pl.
Ex. 21 at 7 (Sen. Blue).)
In truth, many of these additions to HB
589 were drawn from or patterned after similar bills then pending
in the General Assembly.
See H.B. 913, 2013 Gen. Assemb., Reg.
Sess. (N.C. 2013) (SDR); S.B. 666, 2013 Gen. Assemb., Reg. Sess.
(N.C. 2013) (early voting and SDR); S.B. 721, 2013 Gen. Assemb.,
Reg. Sess. (N.C. 2013) (early voting); H.B. 451, 2013 Gen. Assemb.,
Reg. Sess. (N.C. 2013) (early voting and SDR).
Moreover, and as
24
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 30 of 485
discussed below, any assertions of surprise are weakened by the
fact that Senator Stein appeared the next day with charts and
statistics on early voting and SDR that likely could not have been
tabulated overnight.
(See Pl. Ex. 18A at 18 & Ex. A.)
When the Senate Rules Committee met as scheduled on July 23,
Senator Apodaca allowed members of the public in attendance to
speak for two minutes. 22 (Pl. Ex. 202 at 41–56.) Speakers included
the
League
Plaintiffs’
counsel,
Ms.
Riggs,
as
well
as
Jamie
Phillips, who represented the North Carolina State Conference of
the NAACP.
(Id. at 41–43, 53–54.)
The majority of comments
addressed the voter-ID requirement, although citizens also spoke
in opposition to the other challenged provisions, including the
changes to SDR, pre-registration, and early voting.
Several
opponents characterized the bill as an effort at voter suppression.
(See, e.g., id. at 41 (Riggs: “voter suppression at its very
worst”);
id.
at
53
(Phillips:
“The
fewer
young
people
minorities who vote, the better it seems in your minds.
it.
No one is being fooled.”).)
and
We get
Proponents denied the charges.
(See id. at 67-69, 74-75.)
The Senate Rules Committee debated the recent additions to HB
589.
Senator
Stein
argued
that
a
voter-ID
requirement,
the
reduction in early voting, and the removal of SDR were unneeded
22
There is no indication the two-minute time allotment was a deviation
from normal rules.
25
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 31 of 485
changes that would burden voters.
(Id. at 32, 37–40.)
Senator
Robert Rucho, a Republican supporter of HB 589, responded.
As to
early voting, Senator Rucho cited concerns about inconsistency in
the administration of early voting, lack of optimal utilization of
early voting during the seventeen-day period, and the then-exiting
early-voting system’s potential for “gamesmanship and partisan
advantage.”
(Id. at 30–32, 74–75.)
He also noted the potential
for “savings in the sense that by going from seventeen to ten days
you actually have more opportunity to open up more sites.”
at 30.)
(Id.
Senator Rucho further cited “integrity and honesty” in
North Carolina’s election administration as well as increased
public confidence as reasons for the voter-ID provisions.
37, 68.)
(Id. at
He noted that other States have an ID-requirement but
also expressed a belief that most people had one of the required
forms of ID or, in combination with the two-year soft roll out,
had ample opportunity to obtain a free photo ID, as provided
through the bill.
(Id. at 36, 39, 67–68.)
Senator Rucho also
observed that the bill eliminated college IDs from the list of
acceptable IDs because of the inconsistency in the issuance of
those IDs across the State.
(Id. at 68–69.)
The elimination of
OOP voting was described — apparently by a legislative staffer
introducing the bill — as “mov[ing] the law back to the way it was
prior to 2005; conform[ing] to federal law”; no Senator spoke in
26
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 32 of 485
opposition to its elimination. 23
(Id. at 12.)
Senator Rucho
defended the removal of SDR as a way to verify voter registrations
by “giv[ing] the Board of Elections an opportunity to do their job
correctly,
[to]
validate
those
individuals.”
(Id.
at
41.)
Finally, as to pre-registration, Senator Rucho stated that its
elimination was meant to “offer some clarity and some certainty as
to when . . . that young person is eligible to vote and registers
to
vote,”
citing
his
son’s
own
registration authorized him to vote.
confusion
about
(Id. at 22.)
when
pre-
After debate,
the bill passed the committee and proceeded to the floor for second
reading.
(Id. at 76.)
The following afternoon, on July 24, HB 589 was introduced on
the floor of the full Senate.
(Pl. Ex. 549 at 1–2.)
During
several hours of debate after the bill’s second reading, Democratic
senators introduced and discussed several proposed amendments.
Plaintiffs argue that amendments “designed to ameliorate burdens
on African Americans [proposed during the debate] were defeated
with little discussion.”
(Doc. 346 at 52.)
This is simply untrue.
First, many such “amendments” were no more than proposals to remove
the key provisions at issue. (See Pl. Ex. 549 at 32-33.) Moreover,
the Senate did consider and adopt an early-voting aggregate-hours
amendment by Senator Stein, which was substantive and significant.
23
One member of the public noted in passing that OOP voting was being
removed. (Pl. Ex. 202 at 54.)
27
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This came after Senator Stein argued that the reduction in early
voting would disproportionately impact African Americans, and he
introduced an amendment to require CBOEs to offer the same number
of aggregate hours of early voting as were offered in the last
comparable election (whether presidential or off-year).
(Id. at
16–18, 43–44; see also Pl. Ex. 115 (text of the amendment).)
This
could be accomplished, he proposed, by CBOEs offering more hours
at present sites, or by opening more sites.
(Pl. Ex. 549 at 46.)
Senator Stein argued that the amendment would “mitigate” the impact
the reduction of early-voting days would have on all voters,
including African Americans.
(Id. at 28–29.)
Responding, Senator
Rucho urged the Senate to support Senator Stein’s amendment, (id.
at 44), and it passed by a vote of forty-seven to one, (id. at
49).
In all, ten amendments were raised; two were withdrawn, and
three were adopted.
(E.g., id. at 49–51; 64–65; Pl. Ex. 121.)
During the more than four hours of debate, the Senators
exchanged argument on many of the other challenged provisions,
including voter ID, SDR, pre-registration, and the increase in
allowable poll observers, as well as several provisions not at
issue here (including the elimination of straight-ticket voting
and reduction of various campaign-finance restrictions).
Ex. 549 at 66–141.)
(See Pl.
Senator Stein presented charts to support his
28
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arguments about HB 589’s disparate impact 24 with respect to early
voting and SDR, (see Pl. Ex. 18A at 18 & Ex. A.), although it is
not clear how many senators reviewed them, (Doc. 335 at 195–97).
During this hearing, supporters of the bill offered the following
reasons in support of its enactment: reestablishing confidence in
the electoral process through voter ID, with noted skepticism about
the number of voters lacking acceptable identification or the
ability to obtain one in North Carolina, (Pl. Ex. 549 at 2-3, 86–
88, 90); the public support for voter ID, (id. at 3); concern over
voter fraud, (id. at 78, 95); inconsistency in college IDs (which
were previously permitted in the House version of the bill), (id.
at 91-92); providing CBOEs with flexibility to expand early-voting
hours and sites to ensure voter access, (id. at 4–5, 11); allowing
for the verification of voters’ information, (id. at 5, 78);
eliminating confusion stemming from pre-registration, (id. at 6–
7); and a desire to align the State with the practices of other
States as to SDR, pre-registration, and voter ID, (id. at 37, 76–
77).
At the end of the debate, Senator Martin Nesbitt (Democrat),
24
In denying Plaintiffs’ motion for a preliminary injunction, this court
used the term “disparate impact” as shorthand for the fact that African
Americans disproportionately used the removed mechanisms. See N.C. State
Conference of NAACP v. McCrory, 997 F. Supp. 2d 322, 355-56 (M.D.N.C.
2014). This court did not view “disparate impact” and “discriminatory
burden” as necessarily equivalent terms, and thus by using the term
disparate impact never meant to imply that it had found an inequality
of opportunity as contemplated by § 2. Cf. League, 769 F.3d at 240,
244-46 (using the term “discriminatory burden” in laying out its two
part test, but using the term “disproportionate impact” in applying the
first step of that test).
29
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although
its
defeat,
described the debate as “heated,” “healthy,” and “good.”
(Id. at
136.)
opposing
the
bill
strongly
and
urging
He characterized two of the “unintended consequences” of
the bill to have been “fixed” through the amendment process.
(Id.
at 137.) After the bill passed the second reading, Senator Apodaca
objected
to
a
third
reading
that
day,
which
extended
its
consideration by mandating that the debate of the bill be carried
over into the next day.
(Id. at 142.)
On July 25, the Senate began its session with the third
reading of amended HB 589.
offered
a
bipartisan
(Pl. Ex. 550 at 1–2.)
amendment
to
clarify
Senator Rucho
Senator
Stein’s
aggregate-hours amendment to permit a county to obtain a waiver
from the aggregate-hours requirement upon unanimous approval of
both the CBOE and the SBOE; it passed forty-six to zero.
7, 16; see also Pl. Ex. 119 (text of amendment).)
(Id. at
Proponents and
opponents of the bill debated both its provisions and the merits
of various amendments over the next four-plus hours, and the Senate
accepted an amendment dealing with electioneering from Senator Dan
Blue (Democrat).
(Pl. Ex. 550 at 82–83.)
Points made in favor of
the bill at this time included the increased integrity of elections
furthered by requiring voter ID, (id. at 44, 99); public support
for a voter ID requirement, (id. at 44, 52, 98, 100); concerns of
voter fraud, (id. at 76); increased time for verification of voter
registrations (SDR), (id. at 45–46); bolstering public confidence
30
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in the election process, (id. at 53); increased early-voting hours
for voters who worked full-time jobs, (id. at 55–56); and statewide
uniformity in early voting, (id. at 56–57).
senators
characterized
minorities.
the
as
voter
suppression
of
(E.g., id. at 26–35 (Sen. Stein), 57–67 (Sen. Blue),
68–74 (Sen. Gladys Robinson).)
partisan.
bill
Several Democratic
Others characterized the bill as
(Id. at 42 (“I can’t help but wonder if the goal is
simply to maintain political power.”); id. at 66 (contending that
the intent of the law is incumbency protection).)
Proponents
strongly denied such claims and claimed the bill reversed past
practices Democrats passed to favor themselves.
See, e.g., id. at
50–53 (Sen. Thom Goolsby (Republican) alleging Democrat-partisan
influence in past election administration); id. at 74 (Sen. Andrew
Brock (Republican) expressing desire to correct Democrat-influence
in the placement of early-voting sites).)
By the close of debate, a total of fourteen amendments had
been raised in the Senate, with five being adopted, and the Senate
voted in favor of HB 589 along party lines; the bill then returned
to the House for concurrence, as amended.
121; Pl. Ex. 124.)
(Id. at 100; Pl. Ex.
Senator Nesbitt (Democrat), although a vocal
opponent of the bill, noted that “we’ve had a good and thorough
debate on this bill over two days” and “reviewed the bill in great
detail.”
(Pl. Ex. 550 at 90-91.)
With the end of the legislative session approaching, the House
31
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received the Senate’s version of HB 589 that night.
(Pl. Ex. 121.)
At the beginning of a two-hour floor session starting at 7:45 p.m.,
Representative Henry M. Michaux, Jr. (African American, Democrat)
moved that the House form a Committee of the Whole 25 to consider
the bill.
(Pl. Ex. 138 at 1–3.)
Representative Michaux testified
at trial that forming a Committee of the Whole was not customary,
and he could not recall the House ever before having done so.
(Doc. 336 at 38.)
Representative Tim Moore (Republican) opposed
the motion on the grounds that “it is simply a waste of time”
because such a committee “is the same as the full House,” which
the bill was properly before at the moment.
(Pl. Ex. 138 at 5 (“I
can’t think of the last time the House has met as the Committee of
the Whole.”).)
The motion appears to have been a tactic to slow
or stop the bill, and it failed by a vote of forty-one to sixtynine.
(Id. at 6–7.)
Two amendments offered by opponents (Sen. Blue’s amendment of
the date for electioneering; amendments by Senators Rucho and Stein
altering
several
items,
including
“expand[ing]
and
“better
defin[ing]” the type and number of IDs that can be presented for
voting, and requiring the same number of hours of early voting)
were adopted 109 to 0.
(Id. at 7–11.)
The provisions of the new
25 A Committee of the Whole is a legislative device where the whole
membership of a legislative house sits as a committee and operates under
informal rules. Webster’s Third New International Dictionary 458 (1986);
see also H.R. 54 at 12.
32
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full bill were then reviewed.
(Id. at 12–27.)
Each member of the
House Democratic caucus present — including four of the five
members who voted for the House version in April — were granted
time to speak in opposition to the bill.
(Id. at 67–69, 76–79,
88–89; Doc. 165 at 64-65 (testimony of Rep. Glazier).)
opponents
partisan,
characterized
and
the
measure
disproportionately
young voters, and the elderly.
anger tonight is palpable.
as
affecting
voter
Some
suppression,
African
Americans,
(E.g., Pl. Ex. 138 at 57 (“[O]ur
Passage of this bill is a political
call to arms.”); id. at 59 (“This is the most pointedly, obviously
politically partisan bill I’ve ever seen.”); id. at 64 (“voter
suppression”).
On the Republican side, Representative Lewis, a
House supporter of the bill, spoke in support of the amended bill. 26
(Id. at 116–20.)
He pointed out, among other things, that the
bill does not bar Sunday voting, maintains the same overall hours
of early voting, provides for free photo ID, and, in his opinion,
26
Plaintiffs contend that Representative Harry Warren (Republican) “[i]n
describing the changes made by the Senate . . . misleadingly claimed
that the Senate substitute made very few substantive changes to the House
version.”
(Doc. 346 at 54.)
This is a mischaracterization.
Representative Warren actually stated that the Senate “made very few
substantive changes to the VIVA Act,” specifically referring to the voter
ID portion of HB 589 — not the entire bill. (Pl. Ex. 138 at 13, 17
(describing changes to the bill beyond voter ID as “addition[s] to the
VIVA bill”).)
While Plaintiffs may debate the impact of the changes
made to the voter-ID portion, Representative Warren’s statement was a
reasonable description of the number of changes made to that portion of
the bill. (See id. at 13–15.)
33
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strengthens
the
requirements
for
absentee
voting. 27
(Id.)
Subsequently, the House voted — again along party lines — to concur
in the Senate’s version of HB 589 at 10:39 p.m.
(Id. at 120; Pl.
Ex. 122 (noting July 25 roll call vote in House).)
In total, there are over 430 pages of transcript representing
several hours of debate on HB 589 after its amended version was
introduced in July 2013.
There is no evidence that any House or
Senate Rule was disregarded or violated at any time during the
bill’s legislative process.
(Def. Ex. 217 at 3; Doc. 335 at 193.)
The bill was ratified the next day and presented to Governor
McCrory on July 29.
(Pl. Ex. 121.)
The governor signed the bill
into law on August 12, 2013, over the recommendation of the
Attorney General (an elected Democrat), who nevertheless appears
in this lawsuit to defend it.
3.
(Id.)
Enactment of HB 836
On June 18, 2015, less than a month before trial was set to
begin in these cases, the General Assembly passed House Bill 836,
and the governor signed it into law as SL 2015-103 on June 22,
27
Plaintiffs argue that Representatives Warren and Lewis failed to
identify the changes made to early voting. (Doc. 346 at 54.) A review
of the entire transcript reveals that Representative Warren was not
tasked with introducing the early-voting revisions (Part 25 of HB 589);
rather, Representative Lewis was. (Pl. Ex. 138 at 20, 22.) And, while
Representative Lewis did not state that the bill “eliminated a full week
of early voting” in his initial description of Part 25 of the bill (just
as he did not mention the ameliorative amendment of the aggregate-hours
requirement (id. at 22)), he did in fact address it during the debate,
(id. at 116–17).
34
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2015. 28
The law modified the photo-ID scheme created by SL 2013-
381 in three primary ways.
First, it expands the category of acceptable photo IDs by
permitting driver’s licenses, permits, provisional licenses, and
non-operator IDs that have been expired for up to four years.
Gen. Stat. § 163-166.13(e)(1)-(2).
N.C.
Moreover, any voter seventy
years of age or older is permitted to vote using any of the
acceptable identifications that expired at any point after the
voter’s seventieth birthday.
Id. § 163-166.13(f).
Second, the law requires poll workers to inform those without
an acceptable ID that they can complete a written request for an
absentee ballot at an early-voting site until 5:00 p.m. on the
Tuesday before Election Day (i.e., the deadline for requesting
absentee ballots).
Id. §§ 163-166.13(c)(3), 163-227.2(b1), 163-
230.1.
Third,
exception
and
that
most
importantly,
it
creates
permits
in-person
voters
who
do
an
additional
not
have
an
acceptable photo ID to cast a provisional ballot so long as they
complete a declaration stating a reasonable impediment prevented
them from acquiring qualifying photo ID.
163-166.15(a)-(b).
Such
voters
Id. §§ 163-166.13(c)(2),
must
present
alternate
identification, which can consist of “the voter registration card
28
Session Law 2015-103 will be referred to as HB 836 when discussing
legislative history.
35
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issued to the voter by the county board of elections” or “a current
utility bill, bank statement, government check, paycheck, or other
government document” 29 that shows the name and address of the
voter. 30
Id. §§ 163-166.15(c), 163-166.12(a)(2).
Alternatively,
voters may provide their date of birth and the last four digits of
their SSN (“SSN4”).
Id. § 163-166.15(c).
Session Law 2015-103 expressly addresses the scope of the
reasonable impediment exception.
At a minimum, all reasonable
impediment declaration forms are required to include separate
boxes listing the following reasonable impediments to acquiring a
photo ID: (1) “Lack of transportation; (2) “Disability or illness”;
(3) “Lack of birth certificate or other documents needed to obtain
photo
identification”;
(4)
“Work
Schedule”;
(5)
“Family
responsibilities”; (6) “Lost or stolen photo identification”; and
(7) “Photo identification applied for but not received by the voter
voting in person.”
Id. § 163-166.15(e).
In addition, the form
must list a box for “[o]ther reasonable impediment,” which the
voter can check and provide a “brief written identification of the
29
These are the same methods of identification that were required for
SDR when it was in place. 2007 N.C. Sess. Law 253, § 1 (permitting SDRregistrants to use any of the documents listed in N.C. Gen. Stat. § 163166.12(a)(2)).
30
A voter who is unable to provide either of these forms of
identification may comply with the requirement by returning to their
CBOE by noon the day prior to the election canvass and presenting the
required alternate ID. N.C. Gen. Stat. §§ 163-166.15(d), 163-182.1B(c).
36
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reasonable impediment.” 31
Id. § 163-166.15(e)(1)h.
Although a reasonable impediment voter casts a provisional
ballot, the ballot must be counted unless one of the following is
true: the impediment described in the declaration is “factually
false, merely denigrate[s] the photo identification requirement,
or [is an] obviously nonsensical statement[]”; the voter fails to
provide one of the alternate forms of identification discussed
above; the CBOE could not confirm the voter’s registration using
the alternate form of identification provided; or the “voter is
disqualified for some other reason provided by law.”
182.1B(a).
Id. § 163-
Significantly, if a voter’s reasonable impediment
declaration is challenged, the CBOE is required to “construe all
evidence
presented
submitting
the
in
the
reasonable
light
most
impediment
favorable
to
declaration”
the
and
voter
cannot
reject the impediment on the ground that it is not reasonable.
See id. § 163-182.1B(b)(5)-(6).
House Bill 836 was proposed with little notice and considered
as an amendment to a pending conference report, which is unusual.
(Pl. Ex. 895.)
The legislative record contains thirty pages of
debate and indicates an intent for a broad application of the
exception.
(Id.)
Democrats questioned the process but consented
to fast-track consideration, thus enabling the law to receive
31
The voter can also indicate that State or federal law prohibits listing
the impediment. N.C. Gen. Stat. § 163-166.15(e)(1)h.
37
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immediate consideration and passage by a wide margin (103 to 4).
(Id.
at
30;
see
also
id.
at
29
(Representative
Hall:
“This
conference report does contain some things that will help get us
back to where we are [sic] where we did not have unnecessary
restrictions on voters and where we didn’t have any real measurable
voter fraud.”).)
In summary, as to the major components challenged herein, SL
2013-381 and SL 2015-103 had the following effect:
Voter ID:
Beginning in 2016, in-person voters who have a qualifying
photo ID “bearing any reasonable resemblance to that voter” must
present it to vote, either at the polling place or at the CBOE
after casting a provisional ballot. N.C. Gen. Stat. §§ 163-166.13,
163-182.1A; 2013 N.C. Sess. Law 381, § 6.2.
Acceptable photo IDs
are (1) a North Carolina driver’s license, learner’s permit, or
provisional license (expired up to four years); (2) a special nonoperator’s identification card (expired up to four years); (3) a
United
States
passport;
(4)
a
United
States
military
identification card; (5) a Veterans Identification Card issued by
the United States Department of Veterans Affairs; (6) a tribal
enrollment card issued by a federally recognized tribe; (7) a
tribal enrollment card issued by a tribe recognized by North
Carolina, so long as it is signed by an elected official of the
tribe and the requirements for obtaining it are equivalent to the
38
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requirements for obtaining a special identification card from the
North Carolina Department of Motor Vehicles (“DMV”); and (8) a
driver’s license or non-operator’s identification card issued by
another State or the District of Columbia so long as the voter
registered to vote within ninety days of Election Day.
Stat. § 163-166.13(e).
N.C. Gen.
Those who do not have a qualifying photo
ID and who can list a reasonable impediment to getting one, can
vote in person without photo ID so long as they provide alternative
identification and complete a reasonable impediment declaration.
Id. §§ 163-166.13(c)(2), 163-166.15.
Because the reasonableness
of the impediment given cannot be challenged, in practice the
reasonable impediment exception is better characterized as an
impediment exception.
voter’s
inquiry.
subjective
See id. § 163-182.1B(b)(6).
belief
See id.
is
relevant
to
the
Only the
reasonableness
In addition, curbside voters, those with
religious objections to being photographed, certain victims of
natural disasters, and absentee mail voters are exempt from the
photo-ID requirement.
Id. § 163-166.13(a).
Early Voting:
Early voting must now begin “[n]ot earlier than the second
Thursday
before
an
election,”
permissible early voting.
a
reduction
Id. § 163-227.2(b).
of
seven
days
of
Early voting must
end by 1:00 p.m. on the final Saturday before Election Day,
eliminating CBOE discretion to keep early-voting sites open until
39
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5:00 p.m.
Id.
Under the Stein amendment, the decrease in
permissible days, however, is coupled with a requirement that the
aggregate voting hours offered remain the same.
Thus, the law
requires that, “[f]or elections which do not include a presidential
candidate on the ballot,” CBOEs must “calculate the cumulative
total number of scheduled voting hours at all sites during the
2010 . . . elections” and “ensure that at least the same number of
hours offered in 2010 is offered for [early voting] . . . through
a combination of hours and numbers of [early-voting] sites during
[those] election[s].”
Id. § 163-227.2(g2)(2).
In other words,
counties must offer the same number of aggregate hours of early
voting in non-presidential elections as they did in November 2010.
CBOEs must make the same calculation with respect to presidential
elections: e.g., the same hours in 2016 elections as in 2012.
§ 163-227.2(g2)(1).
Id.
The CBOEs can meet these requirements either
by opening more early-voting sites or keeping the existing sites
open for more hours, including expanding weekend voting hours.
See id. § 163-227.2(f) (“A county board may conduct [early] voting
during evenings or on weekends, as long as the hours are part of
a plan submitted and approved according to subsection (g) of this
section.”).
The law also requires that, except for CBOE offices,
any early-voting site within a county maintain the same hours of
operation as every other site in that county.
Id. § 163-227.2(g).
If a county determines that it cannot meet the aggregate40
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hours requirement or that additional hours are unnecessary, it may
obtain a waiver only “by unanimous vote of the board, with all
members present and voting.”
Id. § 163-227.2(g3).
The waiver
request must also be approved by a unanimous vote of the SBOE.
Id.
Absent a waiver, counties must either open more early-voting
sites or keep existing sites open longer to satisfy SL 2013-381’s
aggregate-hours requirement.
SDR:
any
Session Law 2013-381 repealed SDR.
To be eligible to vote in
primary
voter
or
general
election,
a
must
comply
with
preexisting law that requires the registration application to be
postmarked or delivered in person at least twenty-five days before
Election Day.
Id. § 163-82.6(c). 32
Under existing federal law,
those who move to the State after the registration cut-off date
nevertheless remain able to vote for president and vice president.
52 U.S.C. § 10502(e).
OOP:
Session
provisional
Law
2013-381
ballots,
thereby
prohibits
the
reinstating
counting
the
North
Supreme Court’s interpretation of State law in James.
of
OOP
Carolina
N.C. Gen.
32
Even after the passage of SL 2013-381, North Carolina continues to
permit citizens who become naturalized after the registration deadline
but before Election Day to both register and vote on Election Day. See
N.C. Gen. Stat. § 163-82.6(d)–(e).
Plaintiffs’ fact witness, Rita
Palmer, who works to register Hispanics, testified incorrectly that the
elimination of SDR would cause such new citizens to lose their right to
register and vote. (Doc. 329 at 151, 159-60.)
41
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Stat. § 163-55(a) now provides,
Every person born in the United States, and every person
who has been naturalized, and who shall have resided in
the State of North Carolina and in the precinct in which
the person offers to vote for 30 days next preceding an
election, shall, if otherwise qualified as prescribed in
this Chapter, be qualified to vote in the precinct in
which the person resides.
Thus, as a general matter, if a voter appears at the wrong precinct
on Election Day, he or she will have to go to the proper precinct
before the close of the polls in order to cast a valid vote. 33
Pre-registration:
Session Law 2013-381 ends the practice of pre-registration.
Voter
registration
applications
now
ask
only
one
question
regarding the applicant’s age: “Will you be 18 years of age on or
before election day?”
N.C. Gen. Stat. § 163-82.4(d)(2).
Thus,
those who are seventeen but will be eighteen before Election Day
may still register to vote in that election and in any primary
before that election under SL 2013-381.
Under SL 2013-381, the repeal of pre-registration took effect
in
September
2013;
the
revisions
to
early
voting
and
the
elimination of SDR and OOP voting became effective in January 2014;
33
As discussed below, North Carolina law provides for out-of-precinct
voting in one context even after SL 2013-381: If a registered voter moves
to another precinct within the same county more than thirty days before
an election but fails to report the move to the CBOE before the close
of registration, the registrant is permitted to cast an out of precinct
provisional ballot in her old precinct. N.C. Gen. Stat. § 163-82.15(e).
As with regular OOP, the unreported mover’s provisional ballot is only
counted for those races for which the voter was eligible to cast a ballot
in her new precinct. Id.
42
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and the voter-ID requirement took effect in January 2016.
2013
N.C. Sess. Law 381, §§ 6.2, 12.1(j), 60.2.
C.
Procedural History
On the same day that Governor McCrory signed HB 589 into law,
two groups sued to enjoin it.
case
1:13cv658,
later
The NAACP filed its complaint in
amended,
alleging
that
the
voter-ID
requirement, elimination of SDR, reduction of early-voting days,
prohibition on counting OOP provisional ballots, elimination of
pre-registration, and the expansion of poll observers and ballot
challenges discriminates against African Americans and Hispanics
in violation of the Fourteenth and Fifteenth Amendments of the
United States Constitution, as well as § 2 of the VRA.
The League
Plaintiffs filed their complaint in case 1:13cv660, alleging that
the
elimination
of
SDR,
reduction
of
early-voting
days,
prohibition on counting OOP provisional ballots, and elimination
of CBOE discretion to extend poll hours one hour on Election Day
discriminates against African Americans and imposes an unjustified
burden on all North Carolinians, in violation of § 2 of the VRA
and the Fourteenth Amendment.
On September 30, 2013, the United
States filed its complaint in case 1:13cv861, alleging that the
law’s early voting, SDR, OOP voting, and voter-ID provisions
discriminate against African Americans in violation of § 2 of the
VRA.
These cases were consolidated for discovery and were later
consolidated for trial at the parties’ request.
(Doc. 252.)
43
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On January 27, 2014, the court permitted a group of “young
voters” over the age of eighteen and others to intervene as
Plaintiffs in case 1:13CV660 pursuant to Rule 24(b) of the Federal
Rules of Civil Procedure.
Intervenors allege that the elimination
of pre-registration, reduction in early voting, repeal of SDR,
prohibition
on
counting
OOP
ballots,
elimination
of
CBOE
discretion to keep the polls open an extra hour on Election Day,
and
implementation
of
a
voter-ID
requirement
violate
the
Fourteenth and Twenty-Sixth Amendments.
All
Plaintiffs
alleged
that
the
variously
challenged
provisions of SL 2013-381 have a discriminatory intent and effect,
although the United States has since abandoned its discriminatory
effect claim to the voter-ID law after passage of the reasonable
impediment exception.
As relief, they seek to permanently enjoin
the challenged provisions. The United States seeks the appointment
of federal observers under § 3(a) of the VRA and to subject North
Carolina to a pre-clearance requirement under § 3(c).
Several elections have occurred during the pendency of these
cases.
held
The first occurred in the fall of 2013, when North Carolina
municipal
elections.
No
plaintiff
sought
to
enjoin
enforcement of the law during this election.
In December 2013, after a hearing with all parties and at
their request, the Magistrate Judge issued a scheduling order,
setting May 5, 2014, as the deadline for the filing of a motion
44
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for preliminary injunction and dispositive motions.
(Doc. 30.)
The parties later jointly moved to reset this deadline to May 19,
(Doc. 91.) 34
2014.
On
May
election.
6,
2014,
North
Carolina
held
a
midterm
primary
No plaintiff sought to enjoin enforcement of SL 2013-
381 during this election.
Compared to the previous comparable
primary midterm election, 2010, turnout increased overall: among
registered white voters, it increased from 15.8% to 17.4%; among
registered African American voters, it increased from 11.4% to
13.4%; and among registered Hispanic voters, it increased from
2.9% to 3.3%.
(Def. Ex. 309 at 66.)
Thus, the greatest increase
in turnout in the 2014 midterm primary was observed among African
American voters, despite the implementation of SL 2013-381.
On
May
pleadings.
19,
2014,
(Doc. 94.)
Defendants
moved
for
judgment
on
the
That same day, Plaintiffs filed their
motion for preliminary injunction and the United States sought the
appointment of federal observers.
(Docs. 96, 98.)
Collectively,
Plaintiffs sought to enjoin the elimination of SDR, OOP voting,
pre-registration, CBOE discretion to keep the polls open an extra
34
NAACP and League Plaintiffs sought a July 2014 trial date, while the
United States sought an extended schedule with the possibility of a
preliminary injunction in July 2014. (Doc. 39 at 20-24, 29, 35-40, 4244.) In any event, no party sought to schedule a hearing on a motion
to preliminarily enjoin SL 2013-381 before the May 2014 primary election.
Cf. League, 769 F.3d at 249-50 (Motz, J., dissenting) (expressing concern
about the timing of the preliminary injunction proceeding and the
election).
45
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hour,
the
reduction
of
early
voting,
the
expansion
of
poll
observers and ballot challengers, and the “soft rollout” of the
voter-ID law (in which voters would be advised that the photo-ID
requirement would apply starting in 2016).
Beginning
on
July
7,
2014,
this
evidentiary hearing on all motions.
court
held
a
four-day
On August 8, 2014, after
considering the testimony of multiple fact and expert witnesses
and a record with over 11,000 pages of exhibits and materials,
this court issued a 125-page opinion denying the motions for
preliminary injunction but refusing to dismiss any claims.
997 F.
Supp. 2d 322 (M.D.N.C. 2014).
On August 18, 2014, Plaintiffs — except for the United States
— and Intervenors filed notice of appeal.
(Docs. 172, 174, 175.)
Plaintiffs were granted an expedited appeal, a limited briefing
schedule was ordered, and on September 25, 2014, the court heard
oral argument.
Less than a week later, on October 1, 2014, a
divided panel issued an opinion affirming in part, reversing in
part, and remanding with instructions.
League, 769 F.3d at 229.
The majority found that Plaintiffs had demonstrated a likelihood
of success on the claim that the repeal of SDR and OOP voting
violated § 2 of the VRA.
The court of appeals remanded the case
with instructions to reinstitute the previous SDR and OOP voting
provisions “in full force pending the conclusion of a full hearing
on
the
merits.”
Id.
at
248-49.
Judge
Diana
Gribbon
Motz
46
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dissented.
On the same day the Fourth Circuit issued its opinion, it
also issued its mandate.
Defendants immediately requested that
the
and
mandate
be
recalled
stayed
pending
the
filing
and
disposition of a petition for writ of certiorari with the Supreme
Court of the United States.
The next day, on October 2, the panel
denied the motion, over Judge Motz’s dissent.
Later that day, Defendants applied to the Chief Justice for
a stay and recall of the Fourth Circuit’s mandate pending the
filing and disposition of a certiorari petition. The Chief Justice
referred the application to the full Court.
proceedings
were
pending
in
the
Supreme
Yet, while the
Court,
the
League
Plaintiffs filed an emergency petition for a writ of mandamus with
the Fourth Circuit, seeking to have the court of appeals order
this court to enter the preliminary injunction.
On October 3,
this court entered the preliminary injunction mandated by the
Fourth Circuit and set a hearing for October 7, to address the
State’s
plan
injunction.
for
ensuring
implementation
of
the
preliminary
(Doc. 189.)
The next day, the Supreme Court, over the dissent of two
Justices, recalled and stayed the Fourth Circuit’s mandate and
this
court’s
preliminary
filing
and
disposition of Defendants’ petition for a writ of certiorari.
135
S. Ct. 6 (2014).
injunction,
pending
the
Two days later, on October 10, the Fourth Circuit
47
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implemented the stay and recall of mandate.
After briefing in the
Supreme Court, Defendants’ petition was denied on April 6, 2015.
On May 5, 2015, the mandate of the Fourth Circuit issued, and this
court’s
preliminary
injunction
went
back
into
effect,
reinstituting SDR and OOP until a final resolution on the merits.
Meanwhile, while the mandate and preliminary injunction were
stayed by the Supreme Court, North Carolina held its 2014 general
election, the third election under SL 2013-381.
last
comparable
participation
midterm
increased:
general
among
Compared to the
election,
registered
white
2010,
voter
voters,
it
increased from 45.7% to 46.8%; among registered African American
voters, it increased from 40.4% to 42.2%; and among registered
Hispanic voters, it increased from 19.9% to 20.5%.
at 66.)
(Def. Ex. 309
Not only did African American turnout increase more than
other groups in 2014 with SL 2013-381 in place, but that general
election saw the smallest white-African American turnout disparity
in any midterm election from 2002 to 2014.
(Id. at 62; Pl. Ex.
229 at 7.)
Trial was set for July 13, 2015.
But as a result of the
General Assembly’s June 18, 2015 passage of House Bill 836, the
court immediately held a status conference to address how this
change in law might affect the pending cases.
Plaintiffs pushed
for additional time to assess the new law but opposed delaying
trial on the remaining claims; Defendants argued that the amendment
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rendered the challenge to the voter-ID portion of the law moot.
The court proposed continuing the trial to September 2015 but, at
Plaintiffs’ urging, ultimately carved out the challenge to the
voter-ID law from the July 13 trial setting and agreed to proceed
to trial on the balance of the consolidated claims.
(Doc. 282.)
Thereafter, Defendants moved to dismiss the voter-ID challenge as
moot (Doc. 299); the court denied the motion, setting trial on
those claims for January 25, 2016.
Beginning July 13, 2015, this court held a trial on the merits
of all claims except those challenging the voter-ID provisions.
Over the course of three weeks, the court took the testimony of
over 100 witnesses, both live and through deposition.
Following
trial, the parties submitted almost 300 pages of proposed findings
of fact and conclusions of law.
(Docs. 346, 347.)
On November 24, 2015, five months after SL 2015-103 and eight
weeks before trial, NAACP Plaintiffs moved to preliminarily enjoin
the implementation of the photo-ID provision of SL 2013-381, as
amended by the reasonable impediment provision.
United States did not join this motion.
December 21, 2015.
(Doc. 375.)
(Doc. 371.)
The
Briefing was completed on
On January 15, 2016, the court
issued a fifty-four page memorandum opinion and order denying NAACP
Plaintiffs’ motion for preliminary injunction.
(Doc. 383.)
On January 25, 2016, this court held a trial on the merits of
49
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Plaintiffs’ claims challenging the voter-ID law. 35
The court took
the testimony of five expert and nineteen fact witnesses over the
course
of
six
days.
The
parties
have
since
submitted
138
additional pages of proposed findings of fact and conclusions of
law.
The court also granted Plaintiffs’ unopposed request to
supplement the record post-trial with materials relating to SBOE
training efforts occurring in early February 2016.
Including
the
evidence
from
the
preliminary
injunction
hearing, which the parties have stipulated to be considered part
of the trial record pursuant to Federal Rule of Civil Procedure
65(a)(2), the record therefore consists of over 25,000 pages of
exhibits,
reports,
and
deposition
transcripts. 36
Despite
Plaintiffs’ insistence on trying the claims separately, which
invited
this
court’s
piecemeal
adjudication,
the
court
has
remained faithful to the Fourth Circuit’s direction in League, 769
F.3d at 242, to “consider the sum of those parts and their
cumulative
effect
Accordingly,
this
on
minority
court
has
access
considered
to
the
the
ballot
issues
box.”
from
all
evidentiary proceedings in reaching its decision.
D.
Evidence of Voter Experience Under Current Law
Plaintiffs argue that the addition of voter ID and the removal
35
The Intervenor Plaintiffs elected not to participate at trial.
36
This does not include the trial transcript or Plaintiffs’ Exhibit 646,
which is a database with 39,912 pages.
50
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of the challenged provisions of SL 2013-381 creates inequality of
opportunity, unlawfully burdens all voters, and results in a
disparate, negative burden on African American, Hispanic, and
“young”
voters.
The
evidence
as
to
each
of
the
challenged
provisions is addressed below.
1.
Voter ID
Due to the soft rollout, a photo ID was not required until
the March 2016 primary. Thus, unlike the other provisions at issue
in this case, no data were presented from an election where the ID
requirement was in place.
a.
Voter Education about the Voter-ID
Requirement Prior to the Reasonable
Impediment Exception
Defendants have engaged in substantial efforts to educate
voters about the State’s photo-ID requirement.
Three elections
were held during the educational effort: municipal elections in
November 2013, midterm primary elections in May 2014, and midterm
general elections in November 2014.
Session Law 2013-381 contains a mandate to inform and educate
voters about the new law.
See 2013 N.C. Sess. Law 381, § 5.3.
The General Assembly appropriated approximately $2 million to
implement this requirement. 37
(Def. Ex. 535 at 2.)
To accomplish
37
SBOE Executive Director Kim Strach testified before trial that $900,000
remained by 2016, most of which will be spent on media this year. N.C.
State Conference of the NAACP v. McCrory, No. 1:13CV658, 2016 WL 204481,
at *6 n.12 (M.D.N.C. Jan. 15, 2016).
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these efforts, the SBOE hired election specialists “to create a
mechanism to inform and provide education to the public on the
requirements for [SL 2013-381], and to assist voters who do not
have a photo ID for the purpose of voting in obtaining a photo
ID.”
(Pl. Ex. 815 at 16-17.)
One of the SBOE’s efforts was to educate voters at the polls.
For the 2014 general election, the SBOE developed a color poster
that depicted the photo IDs that would be accepted in 2016 and
advised that voters would need a photo ID to vote beginning in
2016.
(Id. at 28.)
To accompany the poster, the SBOE developed
a “two-sided color card that [would be handed out] to people who
want[ed] information about photo ID and how to obtain it.”
(Id.)
In order to avoid confusion that photo ID was needed prior to 2016,
the SBOE also developed a large sign to be displayed at the
entrance of voting sites stating that voters did not need photo ID
to vote in the current election.
(Id. at 29.)
A similar sign
facing voters exiting the voting site stated that voters would
need a photo ID to vote in 2016 and encouraged them to ask poll
workers for more information.
(Id.)
In addition, at least by the
2014 primary, poll workers were directed to tell voters they would
need a photo ID to vote in 2016, show the color poster illustrating
qualifying IDs, and ask voters whether they had access to one of
the approved forms of ID.
(Id. at 71-72.)
Voters who said they
had a qualifying ID were asked to sign the poll book; if they said
52
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they did not, they were asked to sign the poll book with a line
that said, “I do not have a photo ID” and were told that they would
need one starting in 2016.
(Id.)
Poll workers gave voters without
qualifying ID the two-sided color push card noted above with
instructions on how to get a free ID.
167; Def. Ex. 478.)
(Id. at 72-73; Doc. 414 at
The State kept track of those who claimed
they did not have access to an acceptable photo ID.
(Pl. Ex. 815
at 72-73.)
In addition to efforts to educate voters at polling sites,
the SBOE created a special website dedicated to the photo-ID
requirement and contacted specific voters who potentially lacked
qualifying ID.
This mailing effort targeted two groups.
First,
the SBOE sent a mailing to 10,675 registered voters who claimed
they did not have acceptable photo ID while voting in the 2014
elections.
(Def. Ex. 535 at 7.)
Second, it sent mailings to those
who could not be matched to a government database of persons with
acceptable IDs.
(Id. at 8-11.)
In the lead up to the enactment of North Carolina’s voter-ID
law, the SBOE engaged in a series of database matching efforts
designed to gauge how many North Carolina registered voters lack
qualifying ID.
Those registrants who could not be matched to a
list of persons with North Carolina DMV-issued ID appeared on a
“no-match list.”
(See, e.g., Pl. Ex. 891 at 3.)
The SBOE’s no-
match list contained 1,005,581 registrants as of a February 9,
53
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2011 report, 612,955 registrants as of a January 7, 2013 report,
481,109 registrants as of a March 5, 2013 report, and 318,643
registrants as of an April 17, 2013 report.
(Id. (tbl. 1).)
SBOE refined the matching criteria in each report.
The
Although none
of the SBOE’s reports was “intended to be a comprehensive study on
the number of voters who may not have any photo ID, regardless of
source,” the SBOE indicated that its April 2013 report was, at
that time, the “most accurate estimate on the number of voters for
whom [it] c[ould not] determine to have a photo ID issued by the
[DMV].”
(Pl. Ex. 534 at 1.)
The SBOE’s most recent no-match
analysis took place in February 2015 and was based on a November
4, 2014 snapshot of the data.
(Pl. Ex. 535 at 8.)
It identified
254,391 registered voters who could not be matched to a qualifying
ID in the DMV’s database.
(Id.)
Further, as part of this
litigation, Plaintiffs’ expert Charles Stewart, Ph.D., Kenan Sahin
Distinguished Professor of Political Science at the Massachusetts
Institute of Technology, 38 engaged in a matching analysis based on
a July 16, 2014 snapshot of the data.
7).)
(Pl. Ex. 242 at 11, 38 (tbl.
Dr. Stewart concluded that 397,971 registrants could not be
matched to having a qualifying ID in the DMV and certain federal
databases.
(Id.)
38
Dr. Stewart was proffered without objection as an expert in American
politics, election administration, research methods in political
science, and the effect of election reforms in the American electorate.
(Doc. 332 at 52.)
54
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The SBOE followed up on both its February 2015 report and Dr.
Stewart’s report.
Specifically, it contacted 218,097 39 registered
voters on the basis of the SBOE’s February 2015 no-match list and
209,253 40 registered voters on the basis of Dr. Stewart’s no-match
list.
(Def. Ex. 535 at 8-10.)
The mailing stated that photo ID
would be needed to vote in 2016, listed resources for obtaining
free photo ID, and provided a postage pre-paid response card where
recipients were asked to “confirm[] whether they had acceptable
photo ID, and indicat[e] whether, if they did not, they would like
assistance in obtaining one.”
(Id. at 9.)
The SBOE went through
the same mailing process for voters who claimed they did not have
a qualifying photo ID while voting in 2014.
(Id. at 7-8.)
At
trial, Dr. Stewart testified that these mailings were a very good
idea and an appropriate way to educate voters about the new law.
(Doc. 408 at 49-50.)
In
sum,
for
nearly
two
years
North
Carolina
frequently
notified voters that, unless they met an exception, they would
39
This number is less than the number of registrants identified by the
SBOE’s February 2015 no-match analysis (254,391) because the SBOE removed
“(1) registrants who had a registration status of ‘removed’ at the time
of the mailing and (2) registrants whose address could not be validated
by the mail house vendor responsible for sending out the mailer.” (Def.
Ex. 535 at 8-9.)
40
This number is less than the 397,971 appearing on Dr. Stewart’s nomatch list because the SBOE “eliminated voters who had been removed from
the voter rolls through regular list maintenance . . . [and] eliminated
voters . . . who also appeared on SBOE’s no-match list and had therefore
already been sent a mailing.” (Def. Ex. 535 at 9-10.)
55
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need photo ID to vote in 2016.
b.
With
the
Voter Education After Enactment of the
Reasonable Impediment Exception
advent
of
SL
2015-103’s
reasonable
impediment
exception on June 22, 2015, the prior information provided to
voters was rendered incomplete.
Session Law 2015-103 requires the
SBOE to educate voters on the availability of the reasonable
impediment exception, 2015 N.C. Sess. Law 103, § 8.(g), and the
SBOE has engaged in substantial efforts to do so.
Creation and Distribution of Updated Materials
SBOE Executive Director Kim Strach, whom the court found
credible, testified that “[i]mmediately after the enactment of
S.L. 2015-103 in June 2015, SBOE staff developed new materials
which
would
inform
the
public
of
modifications
to
the
photo
identification requirements and the availability of the reasonable
impediment declaration option.”
(Def. Ex. 535 at 16.)
These new materials “were delivered to every county board of
elections for posting and distribution at early voting and Election
Day polling locations during the 2015 municipal elections”; “have
been distributed to groups and associations by the SBOE Outreach
Team”; “have been made available to candidates filing for the 2016
election contests”; and can be “download[ed] from the SBOE’s
dedicated ‘Voter ID’ website.”
(Id. at 16-17.)
As of December
11, 2015, the “SBOE ha[d] distributed over 105,000 copies of these
56
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materials, including Spanish-language materials.”
(Id. at 17.)
In December 2015, the SBOE received an additional “300,000 flyers
and 13,000 full-size posters” and as of that time planned to
distribute these materials to CBOEs for
posting in public buildings throughout the State, such
as county courthouses and offices, municipal government
offices, town or city halls, health departments, public
assistance agencies, vocational rehabilitation and
mental health centers, hospitals, schools, police
stations, libraries, chambers of commerce, public
transit and bus stations, senior centers, community
centers, shelters and temporary/emergency housing, and
other facilities open to the public.
(Id.)
The SBOE’s plans included dissemination of these materials
through outside partners 41 posting them at targeted locations,
“includ[ing] educational institutions, food banks and pantries,
retail and business establishments, churches, and other locations
open to the public.”
(Id. at 17-18.)
Pursuant to agreements
reached with the University of North Carolina system, the North
Carolina
Community
College
system,
and
the
North
Carolina
Independent Colleges and Universities, the State seeks to further
41
As a result of the SBOE’s partnership with the United Way, the helpline
system operated by the United Way includes photo-ID related messaging.
(Def. Ex. 535 at 19-20.)
Last year this helpline assisted 125,000
callers with needs such as “gaining access to affordable child care,
counseling and support groups, health care . . . and help locating local
food pantries and homeless shelters.” (Id. at 19.) While callers are
on hold, the helpline plays a recorded message containing information
about the current photo-ID requirements for voting. (Id. at 20.) Agent
counselors also provide answers to basic information about the photo-ID
requirements based on training from the SBOE.
(Id.)
United Way’s
partnerships means that statewide distribution of election informational
materials have extended to approximately twenty to sixty different
affiliated agencies in each county. (Id.)
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disseminate print materials to the campuses of “every institution
of higher learning in the State.”
(Id. at 18.)
Further, on or about November 2, 2015, the State mailed a
letter to those organizations who received a prior version of
educational
provision
materials
directing
not
including
“that
the
recipients
reasonable
should
impediment
provide
updated
current information to any individuals to whom they disseminated
the original materials or information.”
(Id. at 17.)
The letter
also offered the assistance of SBOE staff and included a form to
order new materials.
(Id.)
Statewide Media Campaign
The State has also implemented a substantial media outreach
program for the current version of the photo-ID law. 42
The State’s
initial ad was entitled “Be Seen. Be Heard,” (Pl. Ex. 956), and
began airing on television and radio stations across the State in
December 2015, (Doc. 414 at 168).
The ad informed voters that
“[i]f you don’t have an ID, or if you are unable to obtain one,
voting options are available.
For more information on exceptions,
or for help getting a free ID, visit VoterID.nc.gov or call 866522-4723.”
(Pl. Ex. 956.)
The State’s most recent television and
radio ad is entitled “Be Recognized.”
(Def. Ex. 473.)
The sixty
42
See McCrory, 2016 WL 204481, at 8 n.14 (providing an overview of
substantial media coverage of the reasonable impediment exception
preceding the March 2016 primary).
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second version of the advertisement provides:
This election, voters will be asked to show a photo ID
at the polls.
For most voters, you can simply bring
your North Carolina Drivers License or ID card,
passport, military or Veterans Affairs ID or certain
tribal IDs.
And, if there’s something preventing you
from getting one, no worries — you’ll still be able to
vote. Just come to the polls and we’ll help you cast
your ballot.
(Id. at 2-3.)
the same.
The thirty second version of the ad is substantially
(Def. Ex. 472 at 2.)
Both versions of the “Be
Recognized” ad began airing on television and radio in early
February 2015.
(Doc. 414 at 170-72.)
The State also intends to implement “an expansive outdoor
advertising campaign to promote general awareness of the photo-ID
requirements and exceptions.”
(Def. Ex. 535 at 14.)
Director
Strach testified that its “message will be displayed throughout
North Carolina in rural, suburban, and urban areas on 40 vinyl
billboards
through
November
through roughly August 2016.”
2016,
and
100
printed
billboards
(Id.; Doc. 414 at 175.)
Forty
digital electronic billboards across the State also displayed the
message from January through March 2016.
(Def. Ex. 535 at 14.)
Overall, the State estimates that 16.5 million passersby viewed
its billboard messages on fifty-two billboards over a five-week
period leading up to the 2014 general election.
(Id.)
Information Provided on SBOE and CBOE Websites
The State has also used the SBOE’s primary website, CBOE
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websites, and the SBOE’s stand-alone website dedicated to the
photo-ID
requirement
impediment exception.
to
educate
voters
(Id. at 13.)
about
the
reasonable
The SBOE’s dedicated photo-
ID website appears as the first result of a search on Google® for
“North Carolina voter ID.”
At the top of that site is the
statement, “Most Voters Will Need to Show Acceptable Photo ID at
the Polls.”
See N.C. State Bd. of Elections, www.voterid.nc.gov
(last visited April 4, 2016).
To the right of that statement is
an image of acceptable forms of photo ID.
Id.
Below the statement
is the sixty second video version of the “Be Recognized” ad, and
below
the
video,
in
bold,
pink
letters
is
the
statement,
“Reasonable Impediment: Can’t Get a Photo ID? Click Here.”
Clicking
on
the
accompanying
link
produces
the
Id.
following
prominently-displayed statement:
Declaration of Reasonable Impediment
Voters who are unable to obtain an acceptable photo ID
due to a reasonable impediment may still vote a
provisional ballot at the polls. (Examples of a
reasonable impediment include but are not limited to the
lack
of
proper
documents,
family
obligations,
transportation problems, work schedule, illness or
disability, among other reasonable impediments faced by
the voter.)
Voters must also:
1. Sign a declaration describing their impediment; and
2. Provide their date of birth and last four digits of
their Social Security number, or present their
current voter registration card or a copy of an
acceptable document bearing their name and address.
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(Acceptable documents include a current utility
bill, bank statement, government check, paycheck,
or other government-issued document.)
The provisional ballot will be counted when the
information on the declaration is verified and all other
eligibility requirements are met.
Id.
The website has a “button” at the top labeled “Español” that
allows users to receive voter-ID related information in Spanish.
Id.
Judicial Voter Guide
The SBOE also included voter ID-related information as part
of the State’s Judicial Voter Guide, which is required by statute
to be mailed to “every household in North Carolina not more than
twenty-five days prior to the start of early voting in each
election in which there is a statewide judicial contest.”
Ex. 535 at 14.)
(Def.
The front of the guide features a prominent
statement informing voters that important information about the
voter-ID requirement is contained inside.
(Def. Ex. 537 at 1.)
The statement also directs those who “can’t obtain an acceptable
photo ID” to the page of the guide where the reasonable impediment
exception is described.
(Id.)
Pages four through six of the guide
contain information on the voter-ID requirement.
lists
the
acceptable
reasonable
impediment
forms
of
exception,
exceptions to the ID requirement.
ID,
page
and
(Id.)
five
page
six
Page four
describes
lists
the
other
(Id. at 4-6.)
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Targeted Mailing of Those Previously Contacted
Most pertinently, the SBOE has taken specific steps to reeducate those individuals that it previously contacted regarding
the photo-ID requirement.
the
“Acknowledgment
of
As noted above, individuals who signed
no
Photo
ID”
form
while
voting
and
individuals appearing on no-match lists were mailed information
about the need for photo ID in 2016 and how to acquire it.
Ex. 535 at 7-10.)
11.)
These mailings predated SL 2015-103.
(Def.
(Id. at
After the fall elections in November 2015, the SBOE sent
every individual who received a prior mailing (315,755 voters) —
except those who had reported they already possess acceptable photo
ID and those for whom prior mailings were returned to the SBOE as
undeliverable — an additional mailing describing the reasonable
impediment
requirement.
exception
(Id.)
and
other
exceptions
to
the
photo-ID
In December 2015, the SBOE sent a similar
mailing to the 823 voters who indicated they lacked qualifying ID
while voting during the 2015 municipal elections.
(Id. at 8; Doc.
414 at 163-64; Def. Ex. 484.)
Election Official Training
The SBOE has provided CBOEs with substantial training on
implementing
the
voter-ID
impediment exception.
requirement
and
the
reasonable
According to Director Strach, CBOEs “are
responsible for providing in-person training to the local election
workers and officials who will staff polling places,” while the
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SBOE’s
role
counties’
is
to
“provide[]
oversight
efforts,
including
training
and
developing
materials and programs for use by [CBOEs].”
accord Doc. 414 at 139.)
resources
to
the
training
(Def. Ex. 535 at 5;
CBOE training of election workers has
“historically [been] conducted in the months immediately preceding
an election,” and, Director Strach says, there is “no precedent
for county boards of elections to train elections workers on new
elections procedures before the training they will receive for the
2016 elections.”
“[t]raining
(Def. Ex. 535 at 5-6.)
election
officials
According to Strach,
immediately
in
advance
of
an
election is preferable to conducting the training at any earlier
time . . . [as it] allows the training to be fresh in the minds of
election workers.”
(Id. at 6.)
In addition, given that election
workers “typically work only a few days each year, . . . they
receive training only on the procedures which will be in effect
during the election for which they are being trained.”
(Id.)
As noted above, the SBOE began to develop and disseminate
information on the reasonable impediment provision soon after it
was enacted.
In August 2015, the SBOE began to provide training
to CBOE officials on the reasonable impediment exception at the
statewide conference for CBOE members and staff.
See N.C. State
Conference of the NAACP v. McCrory, No. 1:13CV658, 2016 WL 204481,
at *10 n.17 (M.D.N.C. Jan. 15, 2016) (describing the mandatory
nature of the meeting).
On the first day of training, attendees
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received a presentation entitled “Duties and Responsibilities:
Directors and Board Members.”
151-52.)
(Def. Exs. 480, 483; Doc. 414 at
The presentation provided a non-exhaustive list of
acceptable impediments, described the alternative documentation
requirement, and provided guidance on counting provisional ballots
cast under the reasonable impediment exception.
(Def. Ex. 483.)
On the second day of training, attendees received a presentation
entitled “preparing for voter ID in 2016.”
Doc. 414 at 149-50.)
(Def. Exs. 480, 482;
The presentation contained information on
acceptable photo IDs and exceptions to the photo-ID requirement,
including the reasonable impediment exception. (See Def. Ex. 482.)
Another presentation on the second day also featured information
on the reasonable impediment exception.
(Def. Exs. 465, 480; Doc.
414 at 147-48.)
In
January
2016,
the
SBOE
conducted
regional
training
sessions for the CBOE elections personnel who would conduct the
poll worker and election official training for the March 2016
primary.
(Def. Ex. 535 at 5.)
The SBOE encouraged CBOEs to invite
poll workers and election officials to attend regional training.
(Doc. 414 at 145.)
Training sessions were held in Greenville,
Buies Creek, Charlotte, Graham, Asheville, and Raleigh.
532.)
(Def. Ex.
The SBOE also made its presentation available via webinar
so that additional election officials could receive training.
(Doc. 414 at 146.)
In total, 1,400 election officials and poll
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workers participated.
(Id.)
A primary purpose of regional training was to provide training
on how to use the SBOE’s “Station Guide.”
(Id. at 145.)
The
Station Guide is a 123-page document that is placed “on every table
or station at each polling site.”
(Id. at 183-84; Def. Ex. 531.)
It is designed to provide election workers with “step-by-step
instructions”
for
acceptable photo ID.
processing
voters
both
(Doc. 414 at 183.)
with
and
without
The January 2016 regional
training presentation described the purpose and organization of
the Station Guide; acceptable photo ID, along with pictures and
expiration requirements; check-in procedures and the process for
referring those without acceptable ID to the Help Station; the
standard for applying the reasonable resemblance requirement; the
reasonable impediment exception and the process for implementing
it; and the parts of the reasonable impediment paperwork that must
be completed by the voter and the parts that must be completed by
the election worker.
Although
the
(Def. Ex. 532.)
regional
training
presentation’s
primary
reference material was the Station Guide, it also referenced and
provided links to on-demand training videos that the SBOE made
available to CBOEs in December 2015.
(Id.; Def. Ex. 476.)
The
training videos consist of eleven modules for use by CBOEs in
training their election workers.
(Doc. 414 at 140.)
The tenth
module covers the reasonable impediment exception and provides the
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election worker with a hands-on demonstration of how to process a
reasonable impediment voter.
(Id. at 140-41; Def. Ex. 476 at 17-
20.)
Although the Station Guide and training modules are designed
to
be
detailed,
the
more
comprehensive
guide
to
election
administration is the Election Official Handbook (“Handbook”).
(Doc. 414 at 183-84; see Def. Ex. 475.)
The Handbook provides
guidance on “every aspect of the voting experience [and] . . .
step-by-step instructions and scripted language to deal with any
potential scenario that an election official may encounter.” 43
(Doc. 414 at 141; see Def. Ex. 475.)
A copy of the Handbook will
be available at every early-voting and Election Day polling place
in 2016.
On
(Doc. 414 at 142.)
February
1-2,
2016,
the
SBOE
conducted
a
statewide
educational conference for CBOE elections personnel. (Id. at 146.)
Director
Strach
gave
voter-ID
requirements
a
presentation
and
exceptions.
dedicated
(Def.
exclusively
Ex.
551.)
to
The
presentation described various training tools, including the video
modules discussed above, the Station Guide, and webinars, (id. at
6); the roles of various election workers in applying the ID
requirement,
including
greeters,
check-in
workers,
curbside
43
“In the event that the Handbook fails to address a particular
eventuality, poll workers will be trained to contact their county board
of elections staff and/or SBOE personnel for assistance.” (Def. Ex. 535
at 4.)
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attendants, Help Station workers, judges of election, the county
office, and the CBOE, (id. at 8-15); acceptable forms of photo ID
and expiration requirements, (id. at 17-22); the options for voting
when the voter lacks qualifying ID, (id. at 24); the process for
evaluating
reasonable
resemblance,
including
a
reasonable
resemblance flowchart, (id. at 28-42); the reasonable impediment
declaration process and when voters qualify to use it, (id. at 4547); the challenge process for reasonable impediment declarations,
including burdens of proof and standard of review, (id. at 52-58);
and the alternative documentation requirement of the reasonable
impediment
exception,
(id.
at
49).
The
SBOE’s
Veronica
Degraffenreid presented on voting site uniformity and provided
substantial
training
(Def. Ex. 553.)
on
voter-ID
requirements
and
exceptions.
The uniformity presentation described election
worker training resources for CBOEs, (id. at 3-6 (Part I)); the
role of the various voting stations in processing voters, both
with and without qualifying ID, (id. at 12-16); required signage,
including voter ID related signage, (id. at 17-19); materials to
be
handed
out
to
voters,
including
the
voter-ID
push
cards
described above, (id. at 20); the Station Guide’s organization and
purpose,
(id.
at
27-30);
acceptable
ID
and
expiration
requirements, (id. at 31-39; id. at 1-2 (Part II)); step-by-step
check-in procedures for voters with and without acceptable ID,
(id. at 5-16); the reasonable resemblance requirement and the
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applicable standards to apply, (id. at 14-15); and the provisional
voting options available to voters without acceptable ID and how
to implement them at the Help Station, including the reasonable
impediment exception, (id. at 6-15 (Part III); id. at 1-19 (Part
IV)).
Both presentations were detailed and extensive.
Exs. 551, 553.)
(See Def.
A final presentation, entitled “What Will you
Do?,” quizzed attendees on their knowledge.
(Def. Ex. 554.)
The
presentation displayed various types of photo ID for hypothetical
voters and asked attendees whether the ID was acceptable for
voting.
(Id. at 5-18.)
The presentation also quizzed attendees
on how to process voters, (id. at 21-29), how to apply the
reasonable resemblance requirement, (id. at 51-58), and how to
apply the reasonable impediment exception, (id. at 64, 70).
In sum, the SBOE has engaged in substantial efforts to educate
voters
and
election
officials
about
the
requirements
of
and
exceptions to the voter-ID requirement.
c.
Voters’ Experience in Acquiring Qualifying
ID
To acquire a free voter ID, voters must present at a DMV
location providing North Carolina DMV services. Testimony at trial
indicated that this process, at least for some, has not been as
easy as one might expect.
To
acquire
following:
(1)
a
be
free
a
voter
ID,
registered
an
voter
applicant
or
must
complete
do
a
the
voter
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registration application at the time of applying for a voter ID;
(2) sign a declaration stating that the registrant does not have
an acceptable ID to vote; (3) provide proof of North Carolina
residency, or, in the alternative, sign an affidavit of residency
(there is no cost for this affidavit when applying for free voter
ID); (4) provide a valid SSN; and (5) prove age and identity by
providing two supporting documents.
(Def. Ex. 533 at 2 (tbl. 4).)
There has been some inconsistency within the DMV about which
supporting documents are sufficient to prove age and identity.
(See
Doc.
410
at
180-81.)
Historically,
the
“officially
acceptable” list of documents has been published in “Table (1)” of
the DMV’s required-documents form, “DL-231”, which appears on its
website.
(See id. at 180-81, 187.)
Documents in Table (1) are
more traditional forms of supporting identification and include
(1) a driver’s license or State-issued ID card from North Carolina,
another
State,
Puerto
Rico,
a
U.S.
territory,
or
a
Canadian
province (expired less than two years); (2) a certified birth
certificate 44 issued by a government agency in the United States,
Puerto Rico, a U.S. territory, or Canada or U.S. Report of Consular
Birth Abroad; (3) an original social security card; (4) tax forms
44
As noted, SL 2013-381 prohibits the State from charging any fee “to a
registered voter who signs a declaration stating the registered voter
is registered to vote in [North Carolina] and does not have a certified
copy of that registered voter’s birth certificate or marriage license
necessary to obtain [acceptable] photo identification.” N.C. Gen. Stat.
§ 130A-93.1.
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that reflect the applicants full name and full SSN; (5) a Motor
Vehicle Driver’s Record; (6) a North Carolina school transcript or
registration signed by a school official, or a diploma or GED from
a North Carolina school, community college, or North Carolina
university; (7) a valid and unexpired U.S. military ID; (8) a
valid, unexpired passport from any nation; (9) a certified document
from a Register of Deeds or government agency in the United States,
Puerto Rico, a U.S. territory, or Canada; (10) a limited driving
privilege issued by a North Carolina Court (expired not more than
one year); valid, unexpired documents issued by the Department of
Homeland Security or the United States Citizenship and Immigration
Services; or (11) a court document from a U.S. jurisdiction, Puerto
Rico, a U.S. territory, or Canada.
(Def. Ex. 533 at 1 (tbl. 1).)
As a practice, however, DMV examiners did not always limit
themselves to documents in Table (1).
(Doc. 410 at 181.)
Over
time this took the form of an alternate document list, which
benefitted
applicants.
(Id.)
This
list
was
not
publicly
available, and it does not appear to have been uniformly followed
by examiners. (See id.) But it was used by at least some examiners
from January to August 2014.
(Id.)
In any event, in January 2016,
the DMV officially incorporated documents on the alternate list
into the list of acceptable supporting documentation and made that
list available on its website.
(Id. at 186-87.)
Voters are still
encouraged to bring a document from Table (1), but the DMV will
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consider the following unexpired forms of alternate identification
in an application for a free voter-ID: (1) certificate of adoption;
(2) college or student ID; (3) concealed handgun permit; (4)
Department of Revenue tax document; (5) employee or Government ID;
(6) extended health care facility record; (7) hunting or fishing
license; (8) license to carry firearms; (9) life insurance policy;
(10) Medicaid/Medicare card; (11) medical, clinic, or hospital
record; (12) military dependent’s ID card; (13) military draft
record; (14) passport card; (15) payment statement or check stub;
(16) prison ID or inmate record; (17) retirement benefits record;
(18) traffic citation or court record; (19) U.S. Coast Guard
merchant ID card; (20) U.S. vital statistics official notification
of birth registration.
(Def. Ex. 533 at 2 (tbl. 4).)
Because
this list is not exhaustive, the DMV will review any documents
that an applicant has in his possession.
(Id.)
Once a voter has all the necessary materials to acquire a
free voter ID, he must travel to a DMV office providing driver’s
license services.
(Pl. Ex. 1044 at 142.)
The evidence indicated
that as of the beginning of January 2016, approximately 2,172
applicants had sought no-fee voter-ID cards across the State, and
2,139 had been issued.
(Doc. 410 at 177-79; Def. Ex. 494.)
The
DMV currently has 114 brick and mortar sites that provide driver’s
license services.
(Doc. 410 at 164.)
Some have limited hours.
For example, in Allegany County, the location is only open on
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“Wednesday and Thursday 9:30 a.m. to 12:00 p.m., 1:00 p.m. to 3:30
p.m.”
(Pl. Ex. 1044 at 166-167.)
Sixteen of North Carolina’s 100 counties do not have a brick
and mortar site.
(Pl. Ex. 241 at 13.)
Eleven of these counties
are serviced by five DMV mobile units, which currently appear at
twenty-four mobile sites.
(Id.; Doc. 410 at 198-99.)
site offers services more than three days per month.
204; Pl. Ex. 241 at 13 n.3.)
No mobile
(Doc. 410 at
Nevertheless, the DMV estimates that
98% of the its “market population” (those age 15 and older) lives
within a thirty-minute drive of a DMV license service station,
whether a brick and mortar or mobile site.
(Doc. 410 at 168-69.)
A December 2013 customer survey indicated that wait time, not DMV
accessibility, was a top concern for respondents.
at 82-83; Doc. 410 at 156-57.)
adequate
for
those
with
(Pl. Ex. 1044
While the current DMV sites may be
access
to
a
vehicle,
the
court
has
substantial questions about the accessibility of free voter ID for
those who lack transportation, especially in rural communities
that lack public transportation.
At
trial,
Plaintiffs
presented
the
video
depositions
of
several witnesses who experienced difficulty in acquiring certain
qualifying licenses from the DMV.
Their depositions were taken
prior to SL 2015-103’s enactment of the reasonable impediment
exception.
Alonzo Phillips is a sixty-one year old African American male
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who lives with his mother in Halifax County, North Carolina.
Ex. 1048 at 5.)
(Pl.
Ten years ago, Mr. Phillips attempted to acquire
a non-operator ID card (not a license) from the DMV, available for
a nominal fee.
(Id. at 14.)
He presented his social security
card and birth certificate, but the DMV refused to issue him an ID
because his birth certificate listed “Alonz,” while his social
security card displayed his correct name, Alonzo.
(Id. at 15.)
To the extent Mr. Phillips seeks to use his birth certificate as
a supporting document in the future, federal law requires him to
correct the document. 45
Under federal law, “a driver’s license
cannot be issued unless there is an exact match of your name, SSN,
and birthdate with the Social Security Administration.”
at 183.) 46
(Doc. 410
Moreover, because Mr. Phillips was born in New York,
correcting his birth certificate would be logistically difficult
for him.
(Pl. Ex. 1048 at 17-18.)
However, his aunt, who provides
him with support, has offered to help him get a court order to
update his birth certificate.
(Id. at 46-47.)
Most importantly,
there is no indication that Mr. Phillips will have difficulty
voting under the reasonable impediment exception.
In fact, he
45
A birth certificate, of course, is only one form of acceptable
supporting documentation, of which there are many. (See Def. Ex. 533
at 1 (tbl. 1), 2 (tbl. 4).)
46
It was undisputed at trial that federal law requires such a match. No
party provided a citation to the applicable federal law in their
conclusions of law and findings of fact, but the requirement appears to
derive from the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302,
312.
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testified that he can walk to his voting location, which is close
by, and that he has a cellphone and would feel comfortable calling
the SBOE for help.
(Id. at 46, 52.)
Rosanell Eaton is a ninety-three year old African American
and a lead plaintiff in this case.
She is, in every respect the
court can imagine, a remarkable person. In January 2015, Ms. Eaton
presented to the DMV to renew her driver’s license.
at 18-19, 25.)
(Pl. Ex. 1045
It is not clear from her testimony, but it appears
that she was concerned whether her current license would comply
with the new law.
Because the name on her birth certificate
(Rosanell Johnson) did not match the name on her social security
card, federal law prohibited the DMV from issuing her a driver’s
license.
(See id. at 19-20.) 47
told
she
her
needed
to
get
Ms. Eaton testified that the DMV
her
SSN
changed.
(Id.
at
20.)
Presumably, she was actually told to get the name on her social
security card changed so it matched the name she sought to use at
the DMV, but here, too, the record is not clear.
20.)
(See id. at 19-
In any event, Ms. Eaton says the DMV refused to take further
action until she made changes at the social security office.
(Id.).
It took her ten trips (and two tanks of gas) back-and-
forth between the DMV and the social security office before she
47
When she married, she had changed her name to Rosanell Johnson Eaton,
(Pl. Ex. 1045 at 20), but her license was in the name of Rosa Johnson
Eaton, (Pl. Ex. 300).
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got her license on January 26, 2015.
(Id. at 20-21, 24, 51, 55.)
Ms. Eaton is confident now that she will be able to vote using her
new license.
(Id. at 29.)
Ms. Eaton’s testimony does not make clear why her ordeal was
so involved, but it is troubling that any individual could be
subjected to such a bureaucratic hassle.
Here, too, the problems
delaying her license renewal stem from a federal law requirement.
It is unclear why she did not encounter this problem previously,
as her last renewal was in April 2010.
(Pl. Ex. 300.)
But most
importantly, the voter-ID law did not require Ms. Eaton to endure
this hassle.
To the extent Ms. Eaton wanted to continue to drive,
which appears to have been the case, she had to renew her license.
(Pl. Ex. 1045 at 49-50.)
before SL 2013-381.
Driver’s licenses required renewal long
But, to the extent she simply wished to comply
with the ID requirement, her expiring license would have been
compliant for voting.
As a voter over seventy, she can use an
expired license indefinitely so long as it expired after her
seventieth birthday, which hers did. 48
166.13(f); (Pl. Ex. 300).
See N.C. Gen. Stat. § 163-
Also, under the law’s “reasonable
resemblance” requirement – which Plaintiffs do not challenge — a
photo ID is acceptable as long as the name appearing on it is “the
same or substantially equivalent to the name contained in the
48
This exception arguably existed even under SL 2013-381, but SL 2015103 clarified any ambiguity.
75
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registration
record.”
08
N.C.A.C.
previous license meets this test.
17.0101(c).
Ms.
Eaton’s
(“Rosa Johnson Eaton” on her
former license, (Pl. Ex. 300), compared to her voter registration
card of “Rosanell Eaton,” (Pl. Ex. 302)). 49
Silvia Kent is a caretaker for her three disabled sisters,
Katherine, Ester, and Faydeen.
(Pl. Ex. 1049 at 12-13.)
Kent’s sisters are registered to vote and vote regularly.
15-16.)
Ms.
(Id. at
While taking her sisters to vote in the November 2014
election, Ms. Kent was informed that voter ID would be required
beginning in 2016.
(Id. at 16-17.)
to the DMV to acquire ID.
Ms. Kent then took her sisters
(Id. at 19.)
Katherine was issued an
ID, but Esther and Faydeen were not.
(Id.)
The birth date on
Esther’s supporting ID was incorrect.
(Id. at 22-23.)
The DMV
examiner told Ms. Kent that she would need to go to the Register
of Deeds to remedy the problem.
(Id. at 23.)
But when Ms. Kent
did, she discovered another problem: the spelling of Esther’s name
on
her
birth
incorrect.
certificate
(Id. at 26-27.)
and
the
date
of
birth
listed
were
Ms. Kent claims she was told that the
49
It appears that her current registration is in the name of “Rosa Nell
Eaton,” see NC Public Voter Information (“Rosa Nell Eaton”),
https://enr.ncsbe.gov/voter_search_public/voter_details.aspx?voter_reg
_num=000000015723&county=35 (last visited April 5, 2016), which also
qualifies. “Rosa” qualifies as a “variation or nickname” of her formal
first name. 08 N.C.A.C. 17.0101(c)(4)(B) (illustrating that “Sue” is
an acceptable variation or nickname of Susanne). “Nell” as her middle
name qualifies as a typographical error.
Id. at 17.0101(c)(4)(F).
Finally, “Johnson” qualifies as the use of a former/maiden name. Id.
at 17.0101(c)(4)(D).
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Register of Deeds could do nothing about the error.
(Id. at 27.)
A similar problem blocked Faydeen from acquiring an acceptable ID.
(Id. at 29-30.)
fact
that,
Ms. Kent attributes her sisters’ problems to the
despite
certificates
were
being
not
born
filed
in
until
the
1940s,
1962.
(Id.
their
at
birth
35-36.)
Notwithstanding having sought legal assistance and spending “lots
of hours” attempting to get ID for her sisters, as of June 5, 2015,
neither Esther nor Faydeen had acquired acceptable ID.
34, 38-39.)
(Id. at
Nothing in Ms. Kent’s testimony indicates that Ester
or Faydeen would have difficulty voting under the reasonable
impediment exception.
Maria Del Carmen Sanchez is a fifty-eight year-old United
States citizen born in Cuba.
(Pl. Ex. 1051 at 9-11.)
the name Thorpe when she married her husband.
She took
(Id. at 25.)
She
has lived in North Carolina since 1990 and is registered to vote
under the name Maria Sanchez Thorpe.
(Id. at 11-12.)
Her
unexpired passport lists her name as Maria Del Carmen Sanchez.
(Pl. Ex. 836.)
In 2007, six years before SL 2013-381, Ms. Sanchez
went to the DMV to renew her expiring license, which bore the name
(consistent with her voter registration) Maria Sanchez Thorpe.
(Pl. Ex. 1051 at 23; Pl. Ex. 839.)
passport
identity.
as
a
supporting
document
(Pl. Ex. 1051 at 23.)
She attempted to use her
to
establish
her
age
and
But, because the name did not
match the name listed with the DMV, it would not issue her a
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license. 50
(Id. at 24-25.)
According to her, the DMV told her
that the only way she could cure her problem and use her passport
to
establish
identity
was
to
drop
Thorpe
from
her
name
by
“get[ting] a divorce or . . . go[ing] to [the] Social Security
Administration.”
(Id. at 34.)
After some research, Ms. Sanchez
learned she could file an affidavit for name change at the DMV.
(Id. at 35-36; Pl. Ex. 840.)
She and her husband returned to the
DMV, where she instructed DMV workers as to the location of the
affidavit, completed it, had it notarized, and received a new
license.
(Pl. Ex. 1051 at 36-37.)
While Ms. Sanchez’s testimony demonstrates the ineptitude of
government bureaucracy, her difficulty arose from her failure to
update her documents after getting married and changing her name.
(Id. at 25-26.)
Had she updated her passport as she did her other
legal documents, she could have used it to renew her license
without issue.
The DMV should be faulted for being unaware of the
name change affidavit option, but it cannot be faulted for finding
Ms. Sanchez’s passport bearing a different name to be insufficient
to establish her identity.
In any event, Ms. Sanchez’s testimony
is not especially probative of the current state of affairs at the
50
At the time, Ms. Sanchez considered her legal name to be Maria Sanchez
Thorpe. (See Pl. Ex. 1051 at 25.) Her driver’s license from 1994 had
used that name, and she testified that after getting married she updated
“everything” — except her Passport — to use the name Thorpe. (See id.)
She never updated her passport because “it never occurred to [her] to
change [her] passport” and that it “didn’t seem important.” (Id.)
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DMV, as her incident occurred almost six years before SL 2013-381
and over eight years before trial.
Balanced
against
these
testimonials
was
evidence
of
significant improvements at the DMV since the passage of SL 2013381.
In October 2013, retired U.S. Army Brigadier General Kelly
J. Thomas took over as the Commissioner of Motor Vehicles for the
State of North Carolina.
(Doc. 410 at 153-54.)
Commissioner
Thomas was given a broad mandate to be the “lead change agent” for
the DMV.
(Id. at 154-55.)
problems at DMV.”
His first task was to “analyze the
(Id. at 155.)
To do so, he commissioned a
“Voice of the Customer” survey in December 2013 that identified
eighteen things that DMV customers wanted fixed.
(Id. at 156.)
Respondents were brutally frank:
The survey said that our DMV employees and our process
was not helpful. They said that we were very ugly to
customers. They thought that we didn’t like our jobs —
our employees didn’t like their jobs. They thought the
process was cumbersome.
They wanted online access to
more DMV access, practices and functions. They wanted
credit card and debit card access.
(Id. at 157.)
At trial, Commissioner Thomas testified credibly
that DMV has addressed sixteen of the eighteen issues identified.
(Id. at 156-57.) The two remaining are fingerprinting of customers
and electronic identification, which are in study.
(Id. at 157.)
To address customer service, Commissioner Thomas partnered
with Wake Technical Community College to create “customer 101”
training
for
DMV
employees.
(Id.
at
162.)
In
addition,
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recognizing that DMV examiners did not have any form of continuing
education, he implemented a continuing education program for all
550 examiners.
(Id. at 163.)
The DMV is also in the process of
implementing an online training program for examiners, which is
intended to educate examiners on changes as they happen.
(Id. at
164.)
The DMV has also implemented several strategies to address
customer wait times.
It has implemented online license renewal,
used by 219,000 North Carolinians since June 2015 and saving over
60,000 wait hours, (id. at 165-66); significantly updated examiner
stations to provide each examiner with a “customer-facing computer
screen,” vision and sign tester, credit card/debit card machine,
and camera for taking ID pictures, (id. at 166-67); and rolled out
an extended-hours project (keeping offices open until 6 p.m. at
twenty-one sites and every Saturday until noon at eleven others)
to “offer hours that citizens didn’t have to take off work,” (id.
at 168; Pl. Ex. 664 ¶¶ 80-83).
When the extended-hours program
was offered at nineteen locations (now twenty-one), eighty-six
percent of DMV’s market population lived within a thirty-minute
drive of an extended-hours office.
(Doc. 410 at 168.)
As a result
of these and other changes at the DMV, the average customer wait
time across the State since April of 2015 has been reduced to
nineteen minutes and forty-two seconds.
(Id. at 170.)
In an effort to bring DMV locations closer to customers, the
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DMV has made substantial efforts to expand its mobile unit fleet.
When Commissioner Thomas took over, there were five Winnebago
mobile units, yet only one was operational.
(Id.)
Recognizing
that the aging and maintenance-prone mobile units were not a
productive option, the DMV has developed a “footlocker” mobile
unit.
(Id.
at
170-71,
173.)
These
approximately
100-pound
footlockers are basically a single examiner station in a box. (Id.
at 173-74.)
They can be hauled in the back of a truck and can
plug into a standard electrical outlet.
(Id.)
The DMV has a
patent pending on the units, and Commissioner Thomas says that
other States are interested in them.
(Id. at 174.)
The State
plans to have fourteen footlocker units operating across North
Carolina.
(Id. at 175.)
Commissioner Thomas projects that the
footlockers will allow the DMV to go from the twenty-four mobile
sites it has today to “45 by the end of April . . . [and] 70 by
the summer of 2016.”
(Id. at 211.)
He sees this development as
a key part of his goal to put a DMV brick and mortar or mobile
site within a twenty-minute drive of 98% of the DMV’s market
population.
(Id. at 175-76.)
That said, at the time of trial the
DMV only had one footlocker mobile unit in operation, along with
four Winnebago units.
(Id. at 198-99.)
All told, the DMV was an obvious choice to issue voter IDs,
given its experience in issuing driver’s licenses, but it is
undisputed that the agency had significant flaws in 2013.
There
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is little persuasive evidence the legislature was aware of them,
and the law did contemplate a two-and-one-half-year rollout.
The
evidence showed that the DMV has made substantial improvements
under Commissioner Thomas during this time period.
Nevertheless,
the DMV has room for continued improvement, and Commissioner Thomas
had
to
concede
as
much.
For
example,
Plaintiffs’
counsel
identified substantive inaccuracies in an April 10, 2015 training
presentation on the voter-ID requirement that mistakenly advised,
without
qualification,
that
another
State’s
license
was
an
acceptable photo ID. (See id. at 207-09.) 51 Moreover, the evidence
demonstrated
that,
for
some
voters,
personal
circumstances,
including mismatched or error-riddled documents, made acquiring
even a free voter ID more complicated than one might expect.
No
doubt, the experience of individuals like Mr. Phillips, Ms. Eaton,
and
Ms.
Thorpe
instrumental
in
highlighted
the
these
problems
and
legislature’s
adoption
of
were
a
likely
reasonable
impediment exception.
d.
Evidence of North Carolina Voters Without ID
Plaintiffs claim that hundreds of thousands of registered
51
This training module was offered to examiners beginning in May 2015.
(Doc. 410 at 208.) One slide of the presentation correctly informed
examiners that customers are not eligible to receive free voter ID unless
they have “none of the other forms of ID acceptable for voting.” (Def.
Ex. 534 at 4.) However, another slide educated examiners that a driver’s
license issued by another state is an acceptable form of photo ID. (Id.
at 6.) This is not always true, as this form of identification is only
acceptable if the voter registered “within 90 days of the election.”
N.C. Gen. Stat. § 163-166.13(e)(8).
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North Carolina voters lack qualifying ID and that African Americans
are disproportionately likely to be among them.
In light of the
adoption of the reasonable impediment exception, the focus of this
contention is redirected to include the adequacy of the exception
as a legal matter and the burden of its use.
Plaintiffs’ expert, Dr. Stewart, testified as to results of
his attempts to match North Carolina registered voters’ names to
names in various databases of acceptable IDs. 52
Dr. Stewart
describes database matching as “the technique of allowing the
computer to take unique information about an entity in one database
and find the information related to that entity in another database
using some form of variables to link.”
(Doc. 408 at 8.)
matching is commonly used in the social sciences.
(Id.)
Database
In some
databases, the entities have a unique identifier that can be
matched.
(Id. at 27, 29.)
North Carolina’s voter registration
database does not contain a unique identifier for registrants.
(Id. at 26-27.)
In an attempt to compensate for this shortcoming,
Dr. Stewart designed a series of iterative “sweeps” intended to
match voters on the basis of non-unique identifiers.
(Id. at 27.)
Dr. Stewart’s first no-match list was based on a July 16,
2014 snapshot of the voter registration files.
(Pl. Ex. 242 at
52 Dr. Stewart did not have access to a database “identifying holders of
tribal IDs or out-of-state driver’s licenses.” (Doc. 419 at 22 n.6.)
Therefore, registered voters who only possess these forms of acceptable
ID appear as no-matches in Dr. Stewart’s analyses.
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11.) He found that at least 397,971 (6.1%) registered voters could
not be matched to a qualifying ID.
(Id. at 50 (tbl. 11).)
By
race, he found that 147,111 (10.1%) African Americans could not be
matched to a qualifying ID, compared to 212,656 (4.6%) whites.
(Id. at 38 (tbl. 7).)
Dr. Stewart updated his no-match analysis in December 2015,
after SL 2015-103, to account for its expansion of acceptable IDs,
but he continued to rely on his July 16, 2014 snapshot of data.
(Pl. Ex. 891 at 14 n.26.)
Thus, despite relying on data that is
over a year and a half old during a period of rolling out notice
of the photo-ID requirement, he proffers it as the “best estimate”
of current conditions. (Doc. 408 at 52.) Dr. Stewart incorporated
at least some of Defendants’ critiques from his prior no-match
list, which he characterizes as his “refined matching criteria.”
(Id. at 19 (tbl. 11).) 53
Based on this updated criteria, he found
53
Defendants had identified several flaws in Dr. Stewart’s methodology.
For example, they argued that Dr. Stewart’s failure to include the
“Driver_Hist” table from the DMV database (“SADLS”) led him to include
at least 38,801 voters on his no-match list even though the “Driver_Hist”
table indicated they had an unexpired, DMV-issued ID. (Doc. 391 at 14;
Pl. Ex. 891 at 14 n.26.) By using the “Driver-Hist” table, Dr. Stewart
was able to make additional matches. (Pl. Ex. 891 at 14 n. 26.)
A
substantial number of additional matches were able to be made on account
of the “refined matching criteria.” The updated criteria reduced the
size of the no-match list by 47,837 (272,700 – 224,863). (Pl. Ex. 891
at 19 (tbl. 11).) By race, the updated criteria reduced the number of
African Americans on the no-match list by 14,988 (98,458 – 83,470). As
a percentage of registered voters, this reduced the percentage of African
Americans who could not be matched from 6.8% to 5.7%. (Id.)
As for
whites, the refined criteria permitted 28,876 (145,220 – 116,344) whites
to be matched. (Id.) That reduced the percentage of whites who could
not be matched from 3.2% to 2.5%. (Id.)
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that 224,863 (3.5%) registered North Carolina voters could not be
matched to having an acceptable ID.
(Id.)
Thus, SL 2015-103’s
expansion of acceptable IDs (driver’s licenses and non-operator’s
IDs that have been expired for less than four years) and Dr.
Stewart’s refinement of his matching criteria reduced the size of
the no-match list by 173,108 voters.
11); Pl. Ex. 242 at 50 (tbl. 11).)
(Id. at 14 n.26, 19 (tbl.
By race, Dr. Stewart found
that 83,470 (5.7%) African Americans could not be matched to a
qualifying ID, compared to 116,344 (2.5%) whites. 54
(Pl. Ex. 891
at 19 (tbl. 11).)
In sum, Dr. Stewart was able to match 94.3% of African
American registrants, 97.5% of white registrants, and 96.5% of all
registrants to a qualifying ID.
Dr.
Stewart’s
materially
from
matching
his
analysis
(Id.)
analysis
in
the
in
this
DOJ’s
case
attempt
differs
to
block
preclearance of South Carolina’s voter photo-ID law, which also
includes a reasonable impediment exception.
First,
because
South
Carolina’s
voter
(Doc. 408 at 60-61.)
registration
database
contained a unique identifier — the voter’s full SSN (“SSN9”) —
his results were more precise and were not based on the multiple
“sweeps” of the lists that were necessary here.
(Id. at 28-29.)
Second, he did not include “inactive” voters in his South Carolina
54
Dr. Stewart did not include Hispanics as a separate group in his nomatch analysis. (Pl. Ex. 891 at 19 (tbl. 11).)
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no-match analysis because, in his view, they were less “likely to
vote in the future” and more likely to “soon . . . be moved to
‘archived’ status,” (id. at 21-22), but he did here. 55
This
significantly increased the size of the no-match list in this
case. 56
Despite breaking his results down by active and inactive
voters in his first no-match list, Dr. Stewart omitted it from his
December
analysis.
2015
report
even
though
he
had
(Pl. Ex. 891; Doc. 408 at 138.)
apparently
done
the
However, after cross-
examination at trial, he produced an additional exhibit with the
no-match results.
(Pl. Ex. 1063.)
Dr. Stewart found that 151,005
(2.6%) active voters could not be matched to a qualifying ID.
(Id.)
By race, 60,312 (4.8%) African American active voters could
not be matched to a qualifying ID, compared to 73,143 (1.8%)
whites.
(Id.)
Thus, Dr. Stewart was able to match 95.2% of
African American active voters, 98.2% of white active voters, and
55
Both States define an “inactive” voter substantially the same. (Doc.
408 at 66.) In both States, an inactive voter can present at the polls
and vote if certain conditions are satisfied. (Id. at 131-32.) Dr.
Stewart’s primary reason for including inactive voters here, despite
excluding them in South Carolina, is that they are, regardless of status,
registered voters and are able to vote. (Id. at 156-57.)
56
There is an additional distinction between Dr. Stewart’s no-match
analysis in South Carolina and here. In South Carolina, Dr. Stewart
excluded individuals that were flagged as having received a license in
another State on the logic that they were less likely to be a resident
of South Carolina.
(Doc. 408 at 46-47, 90-91.)
Here, however, Dr.
Stewart permitted such persons to appear on the no-match list. (Id. at
90-91.)
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97.4% of all active voters.
The comparison between Dr. Stewart’s North Carolina and South
Carolina analyses is telling.
As noted above, even though Dr.
Stewart had a unique identifier in South Carolina, he matched a
higher percentage of active and inactive voters in North Carolina
than he did active voters in South Carolina (96.5% in NC vs. 93.3%
in SC).
4).) 57
(Pl. Ex. 891 at 19 (tbl. 11); Def. Ex. 504 at 36 (tbl.
This is true when broken down by race (94.3% of African
Americans in NC vs. 90.5% in SC; 97.5% of whites in NC vs. 94.5%
in SC).
(Id.)
The magnitude of the difference only becomes more
pronounced when the percentage of active voters matched in North
Carolina is compared to the percentage of active voters matched in
57
At trial, Defendants used exhibit 504 to make the comparison to South
Carolina, without objection. Dr. Stewart’s no-match analysis in that
exhibit was limited to South Carolinians who could be matched to having
a “valid driver’s license/ID” card. (See Def. Ex. 504 at 36 (tbl. 4).)
It did not include other acceptable forms of ID. (Id.) Dr. Stewart
later supplemented this analysis with a no-match list that took into
account “military IDs and passports.” (See Def. Ex. 311 at 33 (tbl.
11).) Even though a copy of Defendants’ exhibit 311 was given to the
court, it does not appear to have been moved into evidence. So, the
court does not rely upon it.
It bears noting for the sake of
comprehensiveness, however, that Dr. Stewart’s updated no-match list
from South Carolina (reflected in Defendants’ exhibit 311) nevertheless
exceeds his December 2015 no-match list for North Carolina. After taking
other acceptable forms of ID into consideration, Dr. Stewart was able
to match 94.8% of active South Carolina voters (compared to 96.5% of
active and inactive voters in NC), including 91.7% of African Americans
(compared to 94.3% in NC) and 96.1% of whites (compared to 97.5% in NC).
(See Pl. Ex. 891 at 19 (tbl. 11)); Def. Ex. 311 at 33 (tbl. 11).) Of
course, as noted herein, the magnitude of the difference only becomes
more pronounced when the percentage of active voters matched in North
Carolina is compared to the percentage of active voters matched in South
Carolina, which is the more apples-to-apples comparison. (See Pl. Ex.
1063; Def. Ex. 311 at 33 (tbl. 11).)
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South Carolina, which is the more apples-to-apples comparison
(97.4% in NC vs. 93.3% in SC.).
(tbl. 4).)
(Pl. Ex. 1063; Def. Ex. 504 at 36
This, too, is true when broken down by race (95.2% of
African Americans in NC vs. 90.5% in SC; 98.2% of whites in NC vs.
94.5% in SC).
(Id.)
Notably, the percentage of matched voters in
North Carolina exceeds the data relied upon by the three judge
panel that upheld the South Carolina law. 58
To be sure, Dr. Stewart’s no-match list purports only to note
the lack of a match; it does not equate to lack of a qualifying
ID.
Even if this court were to assume that everyone on Dr.
Stewart’s December 2015 no-match list lacks a qualifying ID,
however, the data suggest that the number who would wish to vote,
and thus use the reasonable impediment exception, will be very
low.
As noted above, the SBOE removed 52,765 individuals from Dr.
Stewart’s list of 224,863 voters as part of its list maintenance
and address validation process and sent the 172,098 remaining
58
Despite the data provided by Dr. Stewart and the racial disparities
that existed in ID possession, the three-judge panel in South Carolina
v. United States, 898 F. Supp. 2d 30, 40 (D.D.C. 2012), precleared South
Carolina’s voter-ID law under § 5 of the VRA in light of its reasonable
impediment exception.
Perhaps recognizing that the reasonable
impediment exception made the exact number of individuals without
qualifying ID less critical, the court relied on ballpark figures. Id.
It found that “about 95% of South Carolina registered voters,” and
“[a]bout 96% of whites and about 92-94% of African Americans,” had
qualifying ID.
Id.
Even under the analysis of Dr. Stewart, the
percentage of matched voters in North Carolina exceeds those matched and
relied upon by the three judge panel (96.5% to “about 95%”; 97.5% to
96%; 94.3% to “[a]bout 92-94%”). Id.; (Pl. Ex. 891 at 19 (tbl. 11)).
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individuals a mailing asking whether or not they have qualifying
ID.
(Def. Ex. 511 at 16-17.)
Defendants’ expert, Janet Thornton,
Ph.D., a labor economist and applied statistician, 59 performed an
analysis of the voting history of those 172,098 individuals.
at 18 (tbl. 6).)
(Id.
She found that 69.8% had not voted in 2012 or
2014 and that 39.5% had never voted.
(Id.)
Broken down by
election, 92.6% did not vote in the 2012 primary, 72.1% did not
vote in the 2012 presidential election, 96.3% did not vote in the
2014 primary, and 87.8% did not vote in the 2014 midterm.
(Id.
(tbl. 7).)
As of December 30, 2015, 45,692 of the SBOE’s mailings had
been returned to the SBOE; 38,815 of those were undeliverable,
(id. at 17), and 4,992 stated they already had a qualifying ID,
(id. at 18 (tbl. 6)).
Although these respondents do not reveal
how many of the “undeliverable” or “non-responses” lack qualifying
ID, the data show that these respondents behave much more like
normal voters than the no-match list as a whole.
For example,
only 30.1% of those who said they have qualifying ID did not vote
in the 2012 presidential election.
(Id. (tbl. 7).)
This is
consistent with the turnout of that election, where 67.2% of
registered African Americans, 60.4% of registered whites, and
59 Dr. Thornton was proffered “as an expert in the field of economic and
applied statistical analysis.” (Doc. 338 at 92.) Plaintiffs did not
object to Dr. Thornton’s data analysis and statistical analysis. (Id.
at 93.)
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60.9% of all registered voters voted.
(Pl. Ex. 242 at 161 (App’x
U).)
Defendants’
expert,
M.V.
Hood,
III,
Ph.D.,
Professor
of
Political Science at the University of Georgia, 60 provided a glimpse
into the likely prevalence of reasonable impediment voting by
providing data from South Carolina, the only other State to offer
that option.
In the 2014 general election, of 1,195,741 votes
cast, 131 reasonable impediment affidavits were completed. 61
That
constitutes 1.1 reasonable impediment affiants for every 10,000
voters.
(Def. Ex. 500 at 2.)
Of course, the 2014 election was
not a presidential election, and North Carolina has substantially
more voters than South Carolina.
(Pl. Ex. 242 at 161 (App’x U).)
However, there is simply no evidence in this case to suggest that
more than a fraction of a percent of voters will rely upon the
reasonable impediment exception.
Further, the characteristics of individuals on Dr. Stewart’s
no-match list raise serious questions about its reliability.
For
example, those on Dr. Stewart’s no-match list were far more likely
60
Dr. Hood was proffered as an expert “in the field of American politics
. . . [and] the areas of electoral politics, racial politics, southern
politics, and election administration” without objection. (Doc. 339 at
56-57.)
61
Dr. Hood acquired data from every county in South Carolina except
Spartanburg County. (Doc. 410 at 234-35.) He requested the data but
was told it did not exist. (Id.) If any reasonable impediment affidavits
were completed in that county, they are not reflected in Dr. Hood’s
analysis.
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not to have included the last four digits of their SSN (“SSN4”) on
their registration: 59.4% of those on the no-match list were
missing their SSN4, compared to 14.6% of registered voters.
Ex. 511 at 12 (tbl. 1).)
It may be that those who do not include
their SSN4 are less likely to have an ID.
equally
plausible
(Def.
explanation
is
that
But another at least
North
Carolina’s
voter
registration form did not ask for a registrant’s SSN4 prior to
2004, and even today the information is not required.
at 116.)
2004.
(Doc. 408
Half of Dr. Stewart’s no-match list registered before
(Doc. 416 at 40.)
As Dr. Thornton testified, “the fewer
types of information there are to compare, the less likely it is
to find potential matches.”
(Def. Ex. 511 at 11.)
of Dr. Stewart’s sweeps used SSN4 as a data field.
At least nine
(Pl. Ex. 242
at 29 (tbl. 3).)
Dr. Thornton credibly identified several problems affecting
the reliability of Dr. Stewart’s methodology.
This court will not
set forth every criticism herein, but here are the more significant
ones.
had
Most relevant, Dr. Thornton questioned whether Dr. Stewart
done
sufficient
accuracy.
manual
review
(Doc. 416 at 64, 86.)
of
his
results
to
ensure
Dr. Thornton has done database
matching of DMV records for private sector clients in the past and
asserted that she and her staff spend hundreds of hours on manual
review.
(Id. at 64.)
Dr. Stewart did not perform a manual review
of his December 2015 no-match report, but he did perform an
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“informal review” of his initial no-match list.
(Doc. 408 at 103,
105.) Of the 397,971 individuals on the no-match list, Dr. Stewart
extracted fifty for manual review.
this
review,
mistakes.
he
looked
for
(Id. at 103-04.)
common
(Id. at 104.)
typographical
As part of
errors
and
He identified 10-15% false negatives
- where the computer did not match an individual but the voter
nevertheless has an acceptable ID in the databases.
104.)
error.
(Id. at 27,
Dr. Stewart considered this to be an acceptable degree of
(Id. at 104.)
By contrast, in looking for false positives
— the computer makes a match even though a voter did not have an
acceptable ID in the databases — Dr. Stewart and his research
assistant manually reviewed 100 individuals for each sweep.
at 137, 153; Pl. Ex. 254 at 15-17.)
(Id.
As a result, Dr. Stewart
manually reviewed 3,600 individuals for false positives, but only
fifty individuals for false negatives.
(Id. at 153-54.)
Dr. Thornton also criticized the fact that Dr. Stewart did
not have actual access to the federal databases he used for
matching.
(Doc. 416 at 97.)
Rather, he was forced to give
instructions to the federal agencies and let them run the sweeps.
(Doc. 408 at 21.)
The federal databases included information on
the possession of passports and veteran IDs.
according
to
Dr.
Thornton,
is
that
(Id.)
database
The problem,
matching
is
an
iterative process in which you identify criteria for sweeps by
working with the database.
(Doc. 416 at 96-97.)
Without access
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to the database, she claims, it is difficult to determine what
number and type of sweeps should be conducted.
(Id.)
In sum, Dr. Stewart’s no-match list is itself only an estimate
of how many voters lack qualifying ID in North Carolina. 62
(See
62
Plaintiffs claim Dr. Stewart’s first and second no-match analyses
underestimate the true number of voters who lack usable ID because they
count voters with suspended licenses as matches.
(Doc. 419 at 26.)
North Carolina’s voter-ID law does not contemplate whether suspended
licenses are acceptable for voting. See N.C. Gen. Stat. § 163-166.13.
It is not possible to tell whether a DMV ID is suspended just by looking
at it. However, North Carolina law prohibits possession or display of
any “driver’s license, learner’s permit, or special identification card”
that the individual knows to be canceled, revoked, or suspended. Id.
§ 20-30(1). In Dr. Stewart’s initial no-match analysis, he accounted
for suspended licenses. (Pl. Ex. 256 at 2 (revised tbl. 11).) When Dr.
Stewart counted suspended licenses as qualifying ID, he was not able to
match 397,971 individuals.
(Id.)
When he did not count suspended
licenses as qualifying ID, he was not able to match 653,995 individuals.
(Id.) Dr. Stewart has not provided an analysis of suspended licenses
in his most recent no-match report, which he calls his “best estimate.”
(See Pl. Ex. 891; Pl. Ex. 408 at 52.) Accordingly, while Dr. Stewart’s
prior analysis suggests the number of individuals with a suspended
license may be sizable, this court has no current estimate of that
number.
This court cannot simply assume that Dr. Stewart’s prior
analysis is correct because, in addition to updating his matching to
account for expired licenses under SL 2015-103, Dr. Stewart substantially
“refined” his matching criteria between his first and second report.
(See Doc. 408 at 41-43; Pl. Ex. 891 at 19 (tbl. 11).) Dr. Stewart did
not include this refined matching criteria in his initial no-match
analysis, but it has made a substantial difference in his most recent
analysis.
(Pl. Ex. 891 at 19 (tbl. 11).)
For example, without the
refined criteria (which came in part from Defendants), 272,700
individuals would have been on Dr. Stewart’s no-match list. (Id.) With
the refined analysis, which Dr. Stewart “agree[s]” was necessary, (Doc.
408 at 42), 224,863 individuals are on the most recent no-match list
(47,837 fewer), (Pl. Ex. 891 at 19 (tbl. 11)). Moreover, South Carolina
also prohibits the possession or display of “any canceled, revoked,
suspended, or fraudulently altered driver’s license or personal
identification card.”
S.C. Ann. Code. § 56-1-510.
Yet there is no
indication that the court considered suspended licenses as nonqualifying ID in its analysis. See South Carolina, 898 F. Supp. 2d at
40. An apples-to-apples comparison to South Carolina would not exclude
suspended licenses from consideration. In any case, those with suspended
licenses are eligible for a no-fee voter ID, and the fact that they
previously had a DMV-issued ID strongly suggests they have the materials
93
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Doc.
408
at
44.)
There
is
reason
to
believe
that
that
it
substantially overestimates the number of registrants who lack
qualifying ID.
(Id. at 117 (Dr. Stewart, stating that “it’s
possible that there is an overestimate” in the no-match list).)
But even under Dr. Stewart’s estimate, the percentage of North
Carolinians who could not be matched to a qualifying ID is less
than in South Carolina.
In addition, the voting history of those
on the no-match list and the evidence of reasonable impediment
voting in South Carolina suggest that only a fraction of the small
fraction of individuals who lack qualifying ID will cast a ballot
under the reasonable impediment exception.
This is not because
these voters will be deterred by the ID requirement; it is because
they did not vote at a significant rate before the requirement
existed, even in high turnout elections.
As noted below, this has
important implications for the feasibility of administering the
reasonable impediment provision, as the data suggest that poll
workers are not likely to encounter an overwhelming number of such
voters.
and resources necessary to acquire one.
(See Doc. 419 at 49 n.18.)
Additionally, it is not even necessary for these individuals to actually
acquire a no-fee voter ID.
If an individual follows the law and
surrenders his license (so he no longer “possesses” it), then he can
vote under the reasonable impediment exception so long as he has an
impediment to acquiring the voter ID (lack of qualifying documents,
etc.).
An individual who lost his suspended license would also be
eligible to vote under the reasonable impediment exception. See N.C.
Gen. Stat. § 163-166.15(e)(1)f.
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e.
Availability of the Reasonable Impediment
Exception
Voters who do not have a qualifying ID retain the opportunity
to vote through the reasonable impediment exception.
Those so
voting must complete the following process.
When voters present to vote, the first election worker they
will encounter is the greeter.
The greeter’s job is to “[p]rovide
preliminary guidance to voters on voting procedures, [p]rovide
information on acceptable photo ID, [a]sk voters to remove their
ID from their wallets or purses prior to presenting to the checkin station . . . [a]nd provide confidence and reassurance that all
voters will be given the opportunity to cast a ballot.” 63
(Def.
Ex. 551 at 9.)
Voters will next move to the check-in station.
The first
question election workers will ask the voter at the check-in
station is whether the voter has acceptable photo ID.
2 at 7.)
(Doc. 412-
If the voter does not, the election worker completes a
“Help Referral Form” and refers the voter to the Help Station.
(Id. at 8.)
The Help Referral form contains the voter’s name,
registration number, address, and reason for referral. (Id.) This
permits the person at the Help Desk to understand why the voter is
being referred to them.
(Id.)
The Help Station existed long
63
If the county wishes, the greeter can also “complete help referral
[forms] and route voter[s] to [the] Help Station.” (Def. Ex. 551 at 9.)
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before the reasonable impediment exception was created, and it
serves to assist any voter who has an issue that may prevent him
from casting a regular ballot.
All provisional voters, including
OOP voters, are referred to the Help Station.
(See id.)
Once at the Help Station, the voter lacking photo ID must be
informed of all alternative voting options available.
3 at 12.)
(Doc. 412-
Voters who have a qualifying photo ID but forgot it or
those who do not have ID but wish to acquire it prior to the
canvass can cast a provisional ballot that will be counted so long
as the voters present a qualifying ID at their CBOE by noon on the
day before the county canvass.
(Id.; Doc. 412-4 at 2.)
Voters
who choose this option do not complete a reasonable impediment
declaration.
Voters
who
subjectively
believe
a
reasonable
impediment prevented them from acquiring ID are entitled to vote
under the reasonable impediment exception.
(Doc. 424-4 at 2.)
Both of these options are available throughout early voting and on
Election Day.
(Doc. 412-3 at 14.)
Finally, voters can request an
absentee ballot at the early-voting site up until the deadline for
doing so (a week before Election Day).
(Id. at 13-14.)
Voters who elect to vote under the reasonable impediment
exception must complete a two-step process at the Help Station.
First,
(“PVA”).
they
must
complete
a
provisional
(Def. Ex. 546 at 3.)
voting
application
This form is not unique to
reasonable impediment voters and must be completed by all voters
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casting a provisional ballot.
(Id. (Ex. 1).)
The top of the PVA
is labeled “Voter Registration/Update Form” and in substance asks
for
the
information
registered.
(Id.)
the
voter
would
have
provided
when
they
At polling places with electronic poll books
(i.e., all early-voting sites), this part of the form will be prepopulated automatically by the electronic equipment and will not
need to be completed by the voter.
(Id. at 3.)
The middle part
of the PVA is labeled “Voter’s Affirmation of Eligibility to Vote.”
(Id. (Ex. 1).)
This section contains in substance the same
attestation to vote that every voter casting a ballot, including
those casting regular ballots, must complete.
Ex. 1056.)
will
need
Reasonable impediment voters, like all other voters,
to
sign
authorized to vote.
the
PVA
(Id. at 3; see Pl.
asks
provisionally.
voters
the
attestation
that
(Def. Ex. 546 at 3.)
to
indicate
(Id. (Ex. 1).)
the
they
are
otherwise
The bottom portion of
reason
they
are
voting
For those without photo ID, this
part of the PVA will pre-populate “to indicate the provisional
voting reason is ‘No Acceptable ID.’”
(Id. at 3.)
In addition to
checking an acknowledgment that they were provided alternative
voting options, (Doc. 412-4 at 9), the voter will “only [need] to
sign the application,” (Def. Ex. 546 at 3).
The election official
will need to sign the form at the bottom of this box. (Id. (Ex.
1).)
Voters can receive assistance from election officials at the
Help Station in completing the PVA.
(Id. at 3.)
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Second,
reasonable
impediment
voters
reasonable impediment declaration (“RID”).
forms:
the
“pre-printed”
version.
(Id. at 3.)
generated
form
is
version
must
complete
a
and
The RID comes in two
the
“SEIMS-generated”
As the names would suggest, the SEIMS-
printed
at
the
Help
Desk
after
certain
information from the SBOE’s registration database (“SEIMS”) is
pre-populated into the form, whereas the “pre-printed” version is
printed before the voter presents.
With regard to the pre-printed version, the top of the form
is
to
be
completed
by
the
election
official
information such as “[l]ocation voted.”
and
includes
(Id. (Ex. 2).)
Moving
down the form, the next box is to be completed by the voter and
asks for the voter’s name, email address, phone number, date of
birth,
and
SSN4.
(Id.)
The
next
Declaration of Reasonable Impediment.”
box
(Id.)
is
labeled
“Voter’s
Voters must declare
that they “suffer from a reasonable impediment that prevents [them]
from obtaining acceptable photo identification.”
(Id.)
The form
then asks the voter to list the impediment(s) he suffers.
(Id.)
The form contains template boxes for the following impediments:
“Lack of transportation”; “Lack of birth certificate or other
documents needed to obtain photo ID”; “Work schedule”; “Lost or
stolen
photo
ID”;
“Disability
or
illness”;
“Family
responsibilities”; “Photo ID applied for but not received”; and
“State or federal law prohibits . . . listing [the] impediment.”
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(Id.)
If any one of these applies, the voter need only check the
appropriate box, although a voter may check all that apply.
(Id.
(“My reasonable impediment is due to the following reason(s).”).)
No further explanation is required.
(Id.)
If none of these
reasons applies or the voter wishes to be more specific, there is
also a box for “other reasonable impediment” followed by a line
where the voter can explain the impediment.
(Id.)
Below the statement of impediment, the voter is asked to check
one of three options indicating which alternative identification
document or information he is providing.
(Id.)
The first box is
to be checked if the voter has provided his SSN4 and date of birth.
(Id.)
If the voter already provided this information in the top
of the RID, he need only check the box.
(Id.)
The second box is
to be checked if the voter is presenting a HAVA document showing
his name and address.
(Id.)
The HAVA documents that qualify are
listed, and the voter need only check which applies.
(Id.)
They
include “a current utility bill; bank statement; government check;
paycheck;
or
other
government
document.”
(Id.)
The
“other
government document” option provides a line where the voter can
write in the applicable document.
(Id.)
The third box is to be
checked if the voter has provided his voter registration card.
(Id.)
Finally, if the voter fails to “provide any alternative
identification document or information,” there is a box for the
election official to check.
(Id.)
The final portion of the pre-
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printed RID requires the voter to attest that it has not been
completed “fraudulently or falsely.”
(Id.)
The SEIMS-generated version of the RID is substantively the
same as the pre-printed form, but differs in the following ways.
(Id. (Ex. 3).)
First, instead of only asking for the voter’s name,
email address, phone number, date of birth, and SSN4, the form
contains the “Voter Registration/Update Form” box that appeared on
the PVA.
(Id.)
This form contains more voter information than is
required on the pre-printed form, but the information is prepopulated by the computer so the voter does not need to complete
it.
(Id. (Exs. 2, 3).)
Second, the portion addressing the
statement of reasonable impediment (where the voter checks which
impediment applies) and proof of identity (where an alternative
identification
document
or
information
is
provided)
contains
smaller typeface. (Id. (Ex. 3).) As with the pre-printed version,
the voter must attest that the form has not been “fraudulently or
falsely” completed.
(Id.)
In sum, the SEIMS form offers the
benefit of pre-population, while the pre-printed form offers the
benefit of larger print.
(Id. (Exs. 2, 3).)
To compensate for
the absence of pre-population, the pre-printed form requires less
voter information than the SEIMS-generated form.
Voters can
receive assistance from election officials at the Help Station in
completing either version of the RID.
(Id. at 3.)
The final document the voter will receive from the poll worker
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is
the
provisional
voter
instructions.
This
form,
which
is
provided to all provisional voters, gives the voter the information
necessary to determine whether his vote was counted.
(Doc. 412-4
at 13.)
Plaintiffs
impediment
concede,
exception
as
they
ameliorates
requirement for some voters.
must,
the
that
burden
the
of
reasonable
the
photo-ID
Plaintiffs nevertheless claim that
the reasonable impediment process places a discriminatory burden
upon African Americans and Hispanics.
They claim that members of
these groups are (1) more likely to lack qualifying photo ID (and
thus need the reasonable impediment exception) and (2) more likely
to struggle in completing the RID.
African Americans are more likely to lack qualifying ID and
thus elect to use the reasonable impediment exception.
As noted
above, Dr. Stewart’s no-match results do not establish how many
North Carolinians lack qualifying photo ID.
However, regardless
of the actual number, it is more likely than not that racial
disparities exist in the population that lacks qualifying photo
ID.
In
each
of
the
SBOE’s
four
no-match
analyses,
African
Americans were less likely to be matched to a qualifying ID.
(Pl.
Ex.
have
891
at
4,
disproportionately
6.)
been
In
on
Stewart’s no-match analyses.
addition,
the
African
no-match
list
Americans
in
each
of
Dr.
(Id. at 13 (tbl. 7), 19 (tbl. 11).)
In fact, the evidence shows that racial disparities grow as the
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no-match list becomes smaller.
(Id.)
Similar disparities have
been found in Georgia and South Carolina.
(Id. at 8-9.)
Further
corroborating the results in North Carolina, Dr. Stewart has
presented studies showing racial disparities in ID possession
nationwide.
(Id. at 9.)
Dr. Stewart claims that he has yet to
find a combination of acceptable IDs that will eliminate the
disparities
in
photo-ID
possession.
(Doc.
408
at
159-60.)
Accordingly, this court finds that, whatever the true number of
individuals without qualifying IDs, African Americans are more
likely to be among this group than whites.
The second part of Plaintiffs’ argument is less clear and
turns on whether the reasonable impediment exception sufficiently
ameliorates any alleged burden arising from disparities in photo
ID possession.
Plaintiffs make several arguments for why this is
not the case.
Plaintiffs
reasonable
ballots.
first
impediment
As
express
concern
declarants
will
Plaintiffs
indicate,
be
over
the
provided
although
fact
that
provisional
HAVA
requires
provisional ballots to be given to voters in certain circumstances,
it only requires those ballots to be counted “in accordance with
State law.”
52 U.S.C. § 21082(a)(4).
Plaintiffs’ argument is two-fold.
But the problem with
First, it is in conflict with
Plaintiffs’ position at trial in July 2015, where they advocated
for OOP provisional ballots on the grounds that they ameliorate
102
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burdens. (Doc. 346 at 90-94); see South Carolina v. United States,
898
F.
Supp.
characterized
alleviating
42
burdens,
(D.D.C.
North
that
as
with
the
ballots
creating
law
(“[T]he
Supreme
curing
problems
as
regard
Carolina
Despite
2012)
ballots
not
Second,
declarants,
provides
30,
provisional
burdens.”).
ballots.
2d
problems
to
reasonable
provides
for
provisional
label,
cast
the
under
and
and
imposing
impediment
counting
North
Court
their
Carolina
reasonable
law
impediment
exception must be counted so long as (1) an acceptable alternate
form of identification can be verified (SSN4 and date of birth,
etc.) and (2) the stated reason is not factually false, merely
denigrating to the ID requirement, or obviously nonsensical.
N.C.
Gen. Stat. § 163-182.1B(a).
Plaintiffs next claim the State’s educational efforts have
not been sufficient to make voters, especially minority voters,
aware of its availability.
This court addressed the sufficiency
of the State’s educational efforts in its denial of Plaintiffs’
motion
to
preliminarily
enjoin
implementation
of
requirement in the March 2016 primary.
(Doc. 383.)
have updated
above,
educational
those
efforts
efforts,
have
as
noted
continued
and
and
ID
Defendants
the
increased
the
State’s
since
the
preliminary injunction decision was issued.
Plaintiffs’ primary witness on the sufficiency of the State’s
educational
efforts
was
Barry
Burden,
Ph.D.,
Professor
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of
Political Science at the University of Wisconsin-Madison. 64
Dr.
Burden opined that the public is not sufficiently informed about
the reasonable impediment exception.
(Pl. Ex. 889 at 4.)
Dr.
Burden has done no study of North Carolinians’ knowledge of the
exception.
(Doc. 407 at 82.)
Instead, he relies upon surveys
from other States, including Wisconsin and Pennsylvania, none of
which has a reasonable impediment exception or experienced North
Carolina’s education effort.
unhelpful.
(Id.)
These studies are plainly
Dr. Burden also cites the nationwide Survey on the
Performance of American Elections, which in 2014 found that 8% of
whites and 14% of African Americans and Hispanics cited not having
“the right kind of ID” as a factor in why they did not vote.
Ex. 889 at 6.)
(Pl.
But only one State in that survey — South Carolina
— had a reasonable impediment exception.
(Doc. 407 at 83-84.)
If
such data exist, Dr. Burden has not broken them down for South
Carolina.
(Id.; Pl. Ex. 889 at 6.)
This court thus lacks any
data on voter knowledge of the reasonable impediment exception in
South Carolina.
perform
any
(Doc. 407 at 83-84.)
study
comparing
North
Further, Dr. Burden did not
Carolina’s
education
and
training efforts to the education and training efforts in the
States studied.
(Id. at 81.)
In short, there is no reliable
64
Dr. Burden was proffered without objection as an expert in the analysis
of election laws and administration and their effect on voter behavior.
(Doc. 331 at 69.)
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evidence
on
which
to
credit
Dr.
Burden’s
opinion
that
North
Carolinians are unaware of the reasonable impediment exception.
What is apparent, as described more fully above, is that North
Carolina’s voter outreach and education efforts pertaining to the
voter-ID requirement and its reasonable impediment exception have
been substantial.
Plaintiffs next argue that the reasonable impediment process
requires a high degree of literacy and is intimidating. Dr. Burden
concluded that, even as amended, “the photo ID provision remains
burdensome
on
voters
in
North
Carolina,
Americans and Latinos than for whites.”
more
so
for
African
(Doc. 407 at 42-43.)
To
reach this conclusion, Dr. Burden relied on what he calls the
calculus of voting. 65
(Id. at 44.)
This framework centers on the
idea that there are costs and benefits to voting.
(Id.)
The State
controls some costs, such as the ease of using certain voting
mechanisms.
(Id. at 45.)
In Dr. Burden’s view, however, the State
does not control any of the benefits of voting.
Dr.
Burden
does
not
consider
the
benefits
(Id.)
of
Because
voting,
he
consequently fails to meaningfully engage the voter’s propensity
to vote.
Although it speaks of costs and benefits, Dr. Burden’s
analysis is in effect reduced to the following two questions: (1)
65
Dr. Burden also relied on a second framework centered on the role that
habit plays in voting behavior.
(Doc. 407 at 48.)
In Dr. Burden’s
view, North Carolina voters were habituated to not providing ID. (Id.)
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did the State increase the cost of voting and, if so, (2) was the
increased cost justified?
(See id. at 53.)
For example, Dr.
Burden cites a State’s imposition of a registration requirement —
found in virtually all States — as a burden on voters, but sustains
it because of its “compelling State interest.”
(Id. (“Mandating
voter registration at one point became sort of obvious reform for
many states.
That was a new restriction, but it had a strong
motivation behind it.”).)
Dr.
Burden’s
conclusion
that
the
reasonable
impediment
exception does not sufficiently ameliorate the alleged burden from
SL 2013-381 is in part based on his belief that the paperwork and
process for the exception will deter low literacy individuals, who
are disproportionately African American and Latino.
at 3, 6.)
This opinion is without support.
expert in literacy.
(Pl. Ex. 889
Dr. Burden is not an
Accordingly, he has not offered a review of
the applicable forms or an opinion as to what level of literacy
would be required to complete the reasonable impediment process.
In sum, Dr. Burden’s testimony was of limited practical assistance
to the court, as it was heavy on theory and light on facts.
Plaintiffs
also
offered
the
testimony
of
several
fact
witnesses who work with low literacy individuals.
Ashley Lasher is the Executive Director of the Literacy
Counsel of Buncombe County, North Carolina.
The
Literacy
Counsel’s
mission
is
to
(Pl. Ex. 1050 at 8.)
“increase
comprehensive
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literacy
and
English
language
skills
through
specialized
instruction by trained tutors and access to literacy resources.”
(Id. at 11.)
The group offers two adult literacy programs to
adults in western North Carolina: an English-as-a-second-language
course serving about 250 students per year, 85-90% of whom are
Spanish-speaking; and an adult education class for low literacy
individuals whose first language is English, which serves about
fifty students per year split equally between African Americans
and whites. (Id. at 44-46.)
Ms. Lasher is not a literacy expert,
nor does she work directly with students.
(Id. at 11, 14.)
Instead, her role is to manage the organization, provide oversight,
and participate in fundraising efforts.
(Id. at 11.)
Plaintiffs
sought to have her opine on the ability of the group’s students to
navigate a draft of the SEIMS-generated version of the RID.
at 62-65.)
(Id.
Plaintiffs did not tender or qualify Ms. Lasher as an
expert, nor did they lay adequate foundation for Ms. Lasher to
provide lay opinion testimony based upon her personal knowledge
and perception.
Fed. R. Evid. 701.
In fact, her testimony made
clear that her opinions were not based on her personal knowledge
and perceptions, but on the personal knowledge and perceptions of
her organization’s program directors, who were not available for
cross examination. 66
66
Consequently, Ms. Lasher’s opinions are not
Ms. Lasher did not review the form with any of the organization’s
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admissible, but, even if they were, this court would not find them
helpful.
Michelle Kennedy is the Executive Director of the Interactive
Resource Center (“IRC”) in Greensboro, North Carolina.
at 82.)
(Doc. 409
The IRC provides a series of services to the homeless or
likely-to-be-homeless population.
(Id. at 82-83.)
One such
service involves assisting the homeless in document recovery and
acquiring ID.
(Id. at 83-84.)
Ms. Kenney testified that ID is
critical to the ability for homeless individuals to transition
back to self-sufficiency.
(Id. at 85.)
Unfortunately, due to the
nature of their living circumstances, homeless individuals are
more likely to lose their ID once it is acquired.
(Id.)
Ms.
Kennedy estimates that 90% of the individuals the IRC serves are
African American.
(Id. at 84.)
With regard to the RID, Ms.
Kennedy was concerned about the form’s request for residential
students, nor does she regularly review forms for level of difficulty.
(Pl. Ex. 1050 at 65, 69.)
Instead, she reviewed it with her
organization’s program directors, who conduct intake assessments, and
sought to give her opinion based on that. (Id. at 69, 76-77.) Based
on her feedback from the directors, she claimed that the reasonable
impediment form requires a higher level of vocabulary, the small font
would make it more difficult for lower literacy readers, and low literacy
individuals might be fearful in completing the form in light of the fact
that it’s a felony to “fraudulently or falsely” complete it. (Id. at
62-65.) Ms. Lasher was not aware that reasonable impediment declarants
can receive assistance in completing the necessary forms from either a
poll worker or a person of their choice. (Id. at 38.) In any event,
she testified that many of the organization’s low literacy students have
significant coping skills that frequently consist of acquiring the
assistance of trusted family members or friends in completing documents.
(Id.) She attributed the fact that many of the organization’s students
are registered to vote to this coping ability. (Id.)
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address and its warning that fraudulently or falsely completing it
is a felony.
(Id. at 100-01.)
Even though the IRC’s “guests” use
the IRC’s address in applying for ID and in registering to vote,
(id. at 109-11), she was concerned that a “vett[ing]” of that
address “would show . . . that [it’s] a commercial address and,
therefore, not a residence,” (id. at 100).
Ms. Kennedy was also
concerned that many of the IRC’s guests would not know their SSN4.
(Id. at 99.)
Maria Unger Palmer is a plaintiff in this case and has
extensive
experience
in
get
out
the
including efforts targeting Hispanics.
vote
(“GOTV”)
efforts,
(Doc. 410 at 7-8.)
In her
future outreach efforts, Ms. Palmer does not plan to use the
reasonable
impediment
exception
because
she
believes
intimidating and “requires a high level of literacy.”
12.)
is
(Id. at
She is not a literacy expert but “was a schoolteacher and a
school principal and trained [individuals] in testing.”
25.)
it
(Id. at
Although Ms. Palmer has volunteered as a translator at the
polls in the past, she says State-provided interpreters are not
available.
(Id. at 14.)
Without an interpreter, she believes,
many low literacy Hispanic voters will not have the literacy skills
to complete the reasonable impediment process.
(Id. at 14-15.)
Examination of the reasonable impediment voting process and
the process of other voting mechanisms reveals that the concerns
of these fact witnesses are not well-founded. Every North Carolina
109
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county uses electronic poll books during early voting.
90; Doc. 414 at 123.)
books on Election Day.
(Id. at
Many, but not all, also use electronic poll
(Doc. 410 at 90.)
Where electronic poll
books are used, the PVA (step 1) and the SEIMS-generated version
of the RID (step 2) will pre-populate with the voter’s registration
information, including residential address. (See Doc. 546 at 3.)
This means that if an IRC guest were to use the IRC’s address when
registering to vote, that address will pre-populate into the
residential address field on both forms.
(See id.)
Those who
present at one of the voting locations without electronic poll
books can complete the pre-printed version discussed above.
id. (Ex. 2).)
(See
This version features larger print and requires
less information from the voter. (See id.) Further, in completing
either form, voters can receive assistance from any person of their
choosing, 67 except “their employer or their union representative.”
(Doc. 414 at 138-39.)
If the voter does not have anyone to assist
67
Plaintiffs contend that N.C. Gen. Stat. § 163-166.8, which is entitled
“Assistance to voters,” prohibits the type of assistance for reasonable
impediment voters that Director Strach says will be provided. (See Doc.
414 at 185-89.) This is incorrect. That statute applies to persons
qualified to vote who need “assistance with entering and exiting the
voting booth and in preparing ballots” and provides that a voter “who,
on account of illiteracy, is unable to mark a ballot without assistance”
“is entitled to assistance from a person of the voter’s choice, other
than the voter’s employer or agent of that employer or an officer or
agent of the voter’s union.” N.C. Gen. Stat. § 163-166.8(a)(2). Most
importantly, Director Strach testified that if a voter asks an election
official for help filling out a form, officials are trained to assume
it is on account of literacy without requiring proof of illiteracy.
(Doc. 414 at 189.)
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him, he can seek assistance from poll workers in completing both
forms.
in
(Id. at 189.)
completing
the
Poll workers are instructed to assist voters
provisional
process
whether the voter is illiterate.
without
(Id.)
inquiring
into
For example, if the voter
tells the poll worker that she does not understand the form, “the
precinct official is supposed to do everything they can to try to
provide as much explanation to [the voter] as possible until they
do understand it.”
(Id. at 211.)
North Carolina's voter-ID law.
This type of assistance predates
For example, in implementing SDR,
poll workers were trained to inspect the voter registration form
to ensure it was properly completed.
(Id.)
This is in part why
Plaintiffs claim it is a valuable fail-safe.
Director Strach
testified that poll workers will provide the same review function
for reasonable impediment voters.
help
station
is
to
ensure
(Id. at 212 (“The person at the
that
[the
reasonable
impediment
declaration] is complete before . . . they provide [the voter] the
ballot
in
order
to
vote
the
provisional
ballot.”).)
If
an
administrative defect in the declaration, such as a failure to
list
an
impediment
or
provide
other
necessary
information,
nevertheless remains, the CBOE has the ability to reach out to the
voter
to
acquire
the
missing
information.
(Id.
at
212-13.)
Accordingly, the reasonable impediment voting process is designed
to permit and provide significant assistance.
Further,
Plaintiffs
have
failed
to
demonstrate
that
the
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reasonable impediment voting process is more difficult than other
voting mechanisms that Plaintiffs either advocate for or have not
challenged.
First, the PVA stage of the reasonable impediment process
(step 1) must be completed by all provisional voters, including
OOP voters.
All such voters must report to the Help Station and
complete the PVA, which requires the voter to provide the same
voter registration-related information as required by the RID and
attest that it is not provided “fraudulently or falsely.”
Ex. 546 (Ex. 1).)
contains
(Def.
As with most voter-related forms, the PVA
phrases,
such
as
“attest,”
“affirmation,” and “fraudulently.”
also a required field.
(Id.)
(Id.)
“provisionally,”
Residential address is
Nevertheless, as noted below, a
disproportionate share of African Americans and Hispanics cast OOP
ballots, and thus necessarily completed the provisional voting
application, when OOP was in place.
Second,
all
registration form.
voters
are
required
(See Pl. Ex. 212A.)
to
complete
a
voter
Those wishing to use SDR
were required to complete a voter registration form at the polling
place.
Residential address is a required field on the voter
registration application.
(Id.)
In bold, red print next to the
signature line, the registrant is warned that “fraudulently or
falsely completing” the registration application is a felony.
(Id.)
Nevertheless, as noted above, African American registration
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rates exceed those of whites in North Carolina.
Third,
every
voter
is
(authorization to vote) form.
required
counsel
pointed
complete
(Doc. 410 at 91-93.)
both before and after the voter-ID law.
Plaintiffs’
to
(Pl. Ex. 684.)
out,
if
(Id.)
over
an
ATV
This was true
Accordingly, as
4.3
million
North
Carolinians voted in the 2008 Presidential election, then over 4.3
million North Carolinians completed an ATV form.
(Id. at 93.)
To
complete the ATV form, the voter must attest that the address he
provided is correct and that he has not voted in the election.
(Pl. Ex. 1056.)
Here, too, the voter is warned that “fraudulently
or falsely completing” the ATV is a felony.
(Id.)
Thus, to the
extent that the IRC’s guests are concerned about attesting that
the IRC’s address is their residential address, this concern
predates the voter-ID law and will remain regardless of the method
of voting employed.
(Id.)
In addition, as with many voting
related forms, there are phrases such as “fraudulently,” “hereby
certify,” and “violation of NC law.”
(Id.)
The fact that so many minority voters have successfully
navigated these forms over the years strongly suggests that their
experience with the RID will not be different. The SEIMS-generated
version may have slightly smaller print, (Def. Ex. 546 (Ex. 3)),
but the same is true of the forms discussed above.
The pre-printed
version appears to have larger print than any of these forms.
(Ex. 1).)
(Id.
The RID only requires two pieces of information from
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the voter that are not redundant of other forms.
must provide alternative identification.
First, the voter
(Id. (Ex. 3).)
Even
assuming Ms. Kennedy is correct that many of the IRC’s guests do
not know their SSN4, (Doc. 409 at 99), the SSN4 is just one form
of acceptable alternative identification, (Def. Ex. 546 (Ex. 3)).
Voters also can provide an acceptable HAVA document or their voter
registration card.
(Id.)
All registered voters receive a voter
registration card, and all SDR voters had to present a HAVA
document in order to vote.
The second piece of non-redundant
information is the section where the voter states his impediment
to acquiring acceptable ID.
(Id.)
is designed for ease of use.
But even this part of the form
Rather than require the voter to
write in his own impediment, the form contains a non-exhaustive
list of eight qualifying impediments, and the voter need only check
one or more that apply.
As noted above, the voter can receive
whatever assistance is necessary to make this determination.
Plaintiffs
next
argue
that
the
reasonable
impediment
challenge process is likely to be implemented in a discriminatory
and intimidating fashion.
As noted above, a provisional ballot
cast under the reasonable impediment exception must be counted and
can only be rejected on the basis of the impediment provided if
the listed impediment is “factually false, merely denigrate[s]”
the ID requirement, or is “obviously nonsensical.” N.C. Gen. Stat.
§ 163-182.1B(a)(1).
A voter’s reasonable impediment declaration
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can become subject to scrutiny through either a voter’s evidentiary
challenge or the CBOE’s review of provisional ballots.
(See Def.
Ex. 547.)
CBOEs are required to “make redacted copies of all Reasonable
Impediment
Declaration
forms
available
to
the
public
upon
request,” (id. at 1), and any voter registered in the same county
as
the
reasonable
impediment
voter
may
make
an
“evidentiary
challenge” to the reasonable impediment declaration,
Stat.
§
163-182.1B(b)(1).
There
are
N.C. Gen.
significant
procedural
limitations on the reasonable impediment challenger.
Challenges
may only be made on the SBOE’s Evidentiary Challenge form, (Def.
Ex. 547 at 7), and must be “submitted no later than 5:00 P.M. on
the third business day following the election”, N.C. Gen. Stat.
§ 163-182.1B(b)(2).
In addition, the scope of the challenge is
“strictly limited” to the facts the challenger alleges in the
written challenge form.
(Def. Ex. 547 at 7.)
To deter unwarranted
or improper challenges, the challenge form clearly provides that
“fraudulently or falsely” completing it is a felony.
(Id.)
Once a challenge has been made to the factual veracity of the
reasonable impediment, the CBOE office is instructed to closely
inspect the evidentiary challenge form to “ensure the form has
been
completed
fully,
including
information for the challenger.”
a
signature
(Id. at 2.)
challenge form must be notarized.
and
contact
To be complete, the
(Id. at 7.)
If the CBOE
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determines
that
the
challenge
form
is
complete
and
timely
presented, the CBOE must send written notice of the challenge to
the voter and the challenger by mail.
(Id. at 3.)
At a minimum,
the notice must contain the following:
Name and address for the voter and the challenger; A
statement indicating that an evidentiary challenge has
been entered . . . disputing the factual truthfulness of
the reasonable impediment claimed by the voter; A
statement that the county board of elections will hold
a hearing at [date, time, and location] during which it
will decide whether the challenger has shown by clear
and convincing evidence that the claimed impediment
merely denigrates the photo identification requirement,
is obviously nonsensical, or is factually false; A
statement that the voter may appear in person or through
an authorized representative to present evidence
supporting the factual veracity of the impediment; [and]
Copies of the Reasonable Impediment Declaration form
(redacted) and the completed Evidentiary Challenge Form.
(Id.)
CBOEs are directed to provide the “maximum notice possible
to the voter,” and in addition to written notice “should make every
effort to contact the voter via phone, email, and any other
available means of contact.”
(Id.)
The CBOE office is also
directed to notify CBOE board members, the county attorney, and
the SBOE of the challenge.
(Id.)
must be forwarded to the SBOE.
All Evidentiary Challenge forms
(Id.)
The SBOE plans to use its
legal team to provide oversight of challenges and ensure CBOEs are
following proper procedure.
(Doc. 414 at 215-16.)
On the day of the canvass, the CBOE “is required to conduct
a hearing on the challenge in an open meeting and render a
determination on the provisional ballot.”
(Def. Ex. 547 at 3.)
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The county attorney’s role at the evidentiary hearing is to provide
CBOE board members with guidance on the standard of review.
at 4.)
(Id.
The standard of review to be applied by the CBOE is
“[w]hether, having considered all facts in the light most favorable
to the voter, the challenger has shown by clear and convincing
evidence that the stated impediment (1) merely denigrates the photo
identification requirement, (2) is obviously nonsensical, or (3)
is factually false.”
(Id. (emphasis added).)
CBOEs have been
trained that “[l]ight most favorable to the voter” means “[i]f you
can view a fact in a way that helps the voter, you must view it
that way.”
(Def. Ex. 551 at 55.)
They have also been trained
that “[c]lear and convincing evidence” “is greater than ‘more
likely than not’” and means “[e]vidence which should fully convince
you.”
(Id.)
“The challenger bears the burden of proof and
persuasion at the hearing.”
(Def. Ex. 547 at 4.)
At the challenge hearing, the CBOE is to first provide the
challenger the opportunity to speak and present evidence.
5.)
The
challenger’s
presentation
is
to
be
(Id. at
limited
to
“substantiating facts already alleged in the Evidentiary Challenge
form.”
(Id.)
CBOEs are reminded “that the statute sets an
intentionally high bar for a challenger.”
(Id.)
If the voter is
present, the board must next provide the voter an opportunity to
speak and present evidence.
held
against
the
voter.
(Id.)
(See
id.
A voter’s absence cannot be
(“[A]ll
evidence
must
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be
construed in the light most favorable to the voter, even if the
voter is not present at the hearing.”).)
In addition, the CBOE is
directed to “[k]eep in mind that a voter who has claimed a
reasonable impediment may face material constraints different from
those experienced by members of the [CBOE].”
not
permitted
to
“second-guess
scheduling constraints.”
the
(Id.)
voter’s
The CBOE is
priorities
or
(Id. at 2, 5.)
After giving the parties an opportunity to speak and present
evidence, the CBOE must deliberate in open session.
(Id. at 5.)
Each CBOE is comprised of three members, no more than two of which
can be from the same party as the governor.
30.
N.C. Gen. Stat. § 163-
A CBOE cannot “find a challenge valid if it provides only
evidence regarding the reasonableness of the impediment.”
Gen. Stat. § 163-182.1B(b)(6).
N.C.
For example, CBOEs have been
trained that if a voter checks the box for “photo ID applied for
but not received,” a challenge could not be sustained on the ground
that the voter “‘waited until the last minute’ to apply for a photo
ID.”
(Def. Ex. 547 at 2.)
If the SBOE has reason to believe that
a CBOE has rejected a RID on the basis of the reasonableness of
the impediment provided, the SBOE intends to use its supervisory
powers to correct this problem.
(Doc. 414 at 216.)
In sum, the
CBOE must reject the challenge unless two of its three members
find that, even viewing the evidence in the light most favorable
to the voter, the challenger has carried his burden of showing by
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clear and convincing evidence that the stated impediment is either
factually false, merely denigrates the photo-ID requirement, or is
obviously nonsensical.
(Def. Ex. 547 at 5.)
The second way a RID may become subject to scrutiny is through
the CBOE’s review of provisional ballots.
(Id. at 6.)
The CBOE’s
ability to reject a RID on the basis of the impediment provided is
very limited.
First, the CBOE “may not question the factual
veracity of a claimed impediment” without completing the formal
hearing process described above.
checked
one
of
the
“template
(Id.)
Second, if the voter
impediments,”
such
as
“lack
of
transportation” or “work schedule,” the CBOE cannot reject the
impediment
on
the
basis
that
it
merely
requirement or is obviously nonsensical.
denigrates
(Id.)
the
ID
This is because
the SBOE considers the template impediments to be non-denigrating
and not nonsensical as a matter of law.
(Id.)
Accordingly, the
only way the SBOE claims a CBOE can reject a reasonable impediment
declaration without a formal hearing is if the voter has checked
the “other reasonable impediment” box and provided a written
description that the CBOE has grounds to believe merely denigrates
the ID requirement or is obviously nonsensical.
(Id.)
All facts
must still be viewed in the light most favorable to the voter, 68
68 Director Strach’s memorandum also instructs CBOEs that the voter’s due
process rights must be preserved by providing the voter with “meaningful
notice and an opportunity to be heard before an unbiased board of
elections.” (Def. Ex. 547 at 6.)
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and the CBOE cannot “reject a provisional ballot if there is any
possible question of fact.” (Id.) The SBOE provided the following
example during CBOE training:
[A] voter who writes “baseball player” on the Reasonable
Impediment Declaration form could be attempting to more
specifically indicate the voter’s profession, which has
impeded the voter from obtaining acceptable photo ID.
Such a claim would be equivalent to the “work schedule”
impediment already deemed valid as a matter of law.
Accordingly, a county board could not disregard the
factual question at issue and consider “baseball player”
as
merely
denigrating
the
photo
identification
requirement or as nonsensical, and as a result throw
out the ballot.
(Id.)
Finally, CBOEs have been instructed that, in considering
non-template impediments during the canvass, the CBOE must
bear in mind that (1) the voter has declared the
impediment under penalty of a Class I felony, (2) the
voter could have easily chosen to mark one of the
template impediments, and (3) election officials were
able to review alternative identification documents or
validate the voter’s social security number and date of
birth.
(Id.)
Even if a voter’s listed impediment is ultimately found to
be factually false, merely denigrating, or obviously nonsensical,
the SBOE will refer the voter for prosecution only where its
investigative
violation.”
team
finds
that
“there
was
intent
to
commit
a
(Doc. 414 at 137.)
The statute governing challenges to RIDs does not provide an
appeal process for reviewing a CBOE’s rejection of a declaration.
See N.C. Gen. Stat. § 163-182.1B; (Doc. 410 at 134).
However, the
SBOE has supervisory authority over all elections in the State and
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has “statutory authority to take any petition or complaint of any
alleged misconduct of a county board of elections or their failure
to carry out their duties in administering the law.”
(Doc. 414 at
138); N.C. Gen. Stat. § 163-22(a),(c). Pursuant to this authority,
Director Strach asserts that a voter who believes her RID has been
erroneously rejected could file a petition or complaint that the
SBOE could review.
(Id. at 216-17); N.C. Gen. Stat. § 163-22(c)
(“[T]he [SBOE] shall have the right to hear and act on complaints
arising by petition or otherwise, on the failure or neglect of a
[CBOE] to comply with any part of the election laws imposing duties
upon such a board.
The [SBOE] shall have power to remove from
office any member of a [CBOE] for incompetency, neglect or failure
to perform duties, fraud, or for any other satisfactory cause.”).
If the CBOE’s failure to follow proper procedure affected the
outcome of an election in the county, then the complaint could be
made in the form of an election protest.
(Doc. 414 at 217.)
Election protests must be resolved before votes are canvassed and
the results certified.
(Id.)
At trial, Director Strach answered hypothetical questions,
including some extensive questioning from the court, on whether
certain
challenges
would
contest
factual
falsity
or
the
reasonableness of an impediment. She was asked “[i]f someone says,
I have [a] lack of transportation, and the challenger says they
have access to a car one day a week, can that be demonstrated to
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be factually false, or is that a question of reasonableness?”
(Doc. 414 at 207-08.)
She replied that she “think[s] that’s a
question of reasonableness.”
(Id. at 208.)
She was then asked
the same question, but the challenger presented evidence that the
voter has access to a bicycle.
(Id.)
Again she replied that she
believes that would only go to reasonableness.
(Id.)
In her view,
“[i]f [the challenger] is only able to provide that [the voter]
has
access
to
transportation
.
.
.
that
would
go
to
the
reasonableness of it, and that would not be able to be deemed not
factual.”
(Id. at 207.)
With regards to “disability or illness,” Director Strach was
asked “if someone checks the box of disability or illness, and
somebody comes forward and says they have evidence that they are
not ill or not disabled,” could the challenge be sustained as
factually false?
(Id. at 208.)
For the challenge to be sustained,
Director Strach testified that the challenger would have to “prove
the absence of disability or illness.”
(Id. at 209.)
If the
challenger could not prove that the voter had never been disabled
or never been ill, then the question would be whether it was
reasonable for the voter not to have acquired a qualifying ID in
light of whatever disability or illness existed.
09.)
(See id. at 208-
Of course, impediments cannot be rejected on the ground that
they are not reasonable.
Director Strach was next asked, “[i]f a voter checks the box
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[for] lack of birth certificate or other documents needed to obtain
photo ID and the person is challenged, and the challenger comes
forward with proof that the person factually has two of the
documents [that are sufficient to establish identity and age at
the DMV],” then can the challenge be sustained?
(Id. at 209.)
She replied that the challenge could only be sustained if the
challenger could show by clear and convincing evidence that the
voter “actually possessed” all of the necessary documents to
acquire a qualifying ID.
(Id. at 209-10 (emphasis added).)
course, the voter’s evidence would be considered as well.
Of
Thus,
if, for example, a challenger were merely to offer evidence from
a database that the voter was issued a certain type of supporting
document, it would not be sufficient to sustain the challenge under
Director Strach’s testimony because it would not prove actual
possession.
(See id.)
Director Strach was next asked “[i]f somebody comes in and
says they are homeless and they’ve had their ID stolen, can they
check the box [for] ‘lost or stolen ID’?”
(Id. at 210.)
replied that this would be a proper use of the RID.
She
(Id.)
Director Strach was also asked “[i]f a voter were to name any
family responsibility, and as long as factually there was such a
responsibility, can that then be questioned further, or does that
then become a question of reasonableness?”
(Id.)
She replied
that so long as any family responsibility existed, any challenge
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would go to reasonableness.
(Id.)
Finally, Director Strach was asked “[w]hat happens if [a
voter] check[s] more than one box and it turns out that one of the
boxes is factually false but another box is not?“
(Id. at 213.)
She replied that “in the light most favorable to the voter .
. .
it can still be counted if at least one of them is correct and
truthful.” 69
In
(Id.)
light
of
the
reasonable
impediment
challenge
process
described above and the testimony of Director Strach, the court
finds that Plaintiffs have failed to show that the reasonable
impediment
challenge
intimidating
or
process
is
discriminatory
likely
manner.
to
be
The
applied
law
gives
in
an
every
advantage to the voter and places every burden upon the challenger.
A challenge cannot be made without the challenger first putting
his own neck on the line and swearing before a notary that “all
the facts . . . alleged in connection with th[e] challenge are
true and accurate to the best of [the challenger’s] knowledge.”
(Def. Ex. 547 at 7.)
Fraudulently or falsely completing the
challenge form is punishable as a felony.
(Id.)
Based on this
record and absent actual fraud, reasonable impediment challenges
appear to be highly unlikely. Although the United States monitored
69
The SBOE represents that it would not refer a case for prosecution
unless the voter “intentionally provided false information on a
declaration.” (Doc. 410 at 137.)
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South
Carolina’s
implementation
of
its
voter
photo
ID
and
reasonable impediment law, neither it nor any other Plaintiff has
directed this court to a single challenge there, much less a
challenge
where
the
factual
falsity
arbitrarily disenfranchise a voter.
provision
was
used
to
This is significant, because
South Carolina has been applying effectively the same reasonable
impediment exception since 2013.
2.
Over
Change in the Early-Voting Schedule
the
past
two
decades,
early
voting
has
grown
in
popularity nationally, while participation in Election Day voting
has waned.
Absentee mail-in voting, however, remains more popular
nationally than early in-person voting.
(Pl. Ex. 40 at 5–6.)
Despite the national growth in popularity, sixteen States do not
offer any form of early in-person voting; two of these States —
Oregon and Washington — conduct elections almost entirely through
the mail. 70
(Def. Ex. 270 at 21 (compiled by Plaintiffs’ expert,
70
During trial, Plaintiffs objected to Defendants’ comparisons with
other States, yet Plaintiffs’ experts themselves repeatedly did just
that in arguing the intent and effect of SL 2013-381. (E.g., Pl. Ex.
40 at 8.) Under § 2, the examination is assuredly a very local, practical
appraisal. League, 769 F.3d at 243. At least one legal commentator
endorses such comparisons, however, as properly within the totality of
the circumstances analysis:
Given the distinctive characteristics of each state’s
election ecosystem, evidence of other states’ laws and
practices may be of limited probative value.
The Sixth
Circuit’s opinion in Ohio State Conference of the NAACP v.
Husted[,768 F.3d 524 (6th Cir. 2014), vacated on other
grounds, No. 14-3877, 2014 WL 10384647 (6th Cir. Oct. 1,
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Sean P. Trende) 71.)
Among the States offering early voting, tremendous variation
exists, ranging from three to forty-six days.
(Id. at 23.)
And
even within a State, there can be variation from county-to-county
2014)] dismissed entirely evidence of other states’
practices, stressing the “intensely localized assessment”
that the statute requires.
The court was right about the
need for such an assessment but wrong, in my view, to dismiss
evidence of other states’ practices entirely. While the main
focus should be on how the challenged practice interacts with
social . . . conditions within the state, other states’
experience may well shed light on that inquiry.
The fact
that an ID requirement is unusually strict may be taken into
consideration.
So too, the fact that a state offers
extraordinarily generous opportunities for early voting — in
comparison with other states — might be taken into
consideration as part of the totality of circumstances,
should the state try to reduce that period. Evidence of other
states’ practices may be of limited probative value, given
the particularized local inquiry that § 2 requires, but should
not be disregarded entirely.
Daniel P. Tokaji, Applying Section 2 to the New Vote Denial, 50 Harv.
C.R.-C.L. L. Rev. 439, 484 (2015) (footnote omitted). At least one other
court has said as much. See, e.g., Frank v. Walker, 768 F.3d 744, 747
(7th Cir. 2014) (“The record also does not reveal what has happened to
voter turnout in the other states (more than a dozen) that require photo
IDs for voting.
If as plaintiffs contend a photo-ID requirement
especially reduces turnout by minority groups, students, and elderly
voters, it should be possible to demonstrate that effect. Actual results
are more significant than litigants’ predictions. But no such evidence
has been offered.”), cert. denied, 135 S. Ct. 1551 (2015).
71
In this case, Mr. Trende was proffered as an expert in “U.S. campaigns
and elections, the voting laws at issue in this case, United States
demographics, and voting behavior.”
(Doc. 339 at 190.)
Plaintiffs
objected and sought to exclude Mr. Trende under Daubert. (Doc. 271;
Doc. 339 at 207.) Plaintiffs, however, did not object to Mr. Trende’s
testimony so long as it was limited “as to what the laws are in each of
the 50 States.” (Doc. 339 at 209 (“If Mr. Trende simply wants to testify
as to what the laws are in each of the 50 states, I don’t think we would
have an objection.
To the extent that he wants to characterize
particular laws as being within the mainstream or outside of the
mainstream, he lacks any particular expertise in that subject.”)). In
any case, this court concludes that Mr. Trende is qualified to present
and organize the laws of the fifty States.
126
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and election-to-election.
(Id. at 24.)
In 2014, when North
Carolina offered ten days of early voting, the national median of
all States and the District of Columbia was eleven days of early
voting.
(Id. at 23.)
Twenty-one States offered fewer than ten
days of early voting; twenty-six States offered more than ten days
of early voting.
(Id.)
An analysis of the length of the early-
voting period offered by each State (rather than the number of
precise days offered), yields similar results.
(Id. at 20.)
The types of days offered for early voting also varies by
State.
North Carolina, both before and after SL 2013-381, is in
the minority of States that offer any weekend voting.
35.)
(Id. at
North Carolina is in a super-minority of States that permit
voting on a Sunday.
Election
law
(Id.)
scholars,
including
Plaintiffs’
own
expert
witnesses, refer to early voting as a form of “convenience voting.”
(See, e.g., Pl. Ex. 42 at 59; Def. Ex. 2 (Ex. 11) at 639; Def. Ex.
348 at 95.)
A fundamental component of Plaintiffs’ claim is that
early voting increases participation.
It would seem obvious that
the introduction of convenience voting would have the effect of
increasing political participation.
surprising
Plaintiffs’
scholarly
own
consensus,
expert
But there is a somewhat
created
witnesses,
that
in
not
no
small
only
is
part
this
by
not
demonstrated, but that empirically early voting actually tends to
depress participation.
(See, e.g., Def. Ex. 346 at 92-93; Def.
127
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 133 of 485
Ex. 348 at 95.)
According to Plaintiffs’ experts, political participation is
defined in terms of voter turnout and registration rates.
(See,
e.g., Doc. 331 at 113.) As Plaintiffs’ expert, Paul Gronke, Ph.D.,
Professor of Political Science at Redd College, 72 wrote in a peerreviewed publication before this litigation arose:
[W]e remain skeptical of those who advocate in favor of
early voting reforms primarily on the basis of increased
turnout. Both these results, and prior work in political
science, simply do not support these claims. There may
be good reasons to adopt early voting — more accurate
ballot counting, reduced administrative costs and
headaches, and increased voter satisfaction — but
boosting turnout is not one of them.
(Def. Ex. 2 (Ex. 11) at 644; see also id. (Ex. 12) at 26 (“The
research
thus
far
has
already
disproved
one
assertion, that early voting increases turnout.
(emphasis added).)
commonly
made
It does not.”)
Early voting “mak[es] it more convenient to be
sure, but pal[es] in significance to such effects as feelings of
citizen empowerment, interest in and concern about the election,
and
political
mobilization
political organizations.”
by
parties,
candidates,
and
other
(Id. (Ex. 11) at 644.)
Another of Plaintiffs’ experts, Dr. Burden, has written:
The added convenience of early voting decreases the
direct costs of voting, but this effect is more than
offset by a reduction in mobilization efforts, resulting
in lower net turnout. . . . Our unambiguous empirical
72
Dr. Gronke was proffered without objection as an expert in early
voting, election administration, political science and research methods,
voter behavior and the effect of election reforms on voters. (Doc. 332
at 206.)
128
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claims are based on multiple data sources and methods:
despite being a popular election reform, early voting
depresses net voter turnout.
(Def. Ex. 348 at 95–96, 108 (emphasis added).) 73
Social scientists
have suggested that this counter-intuitive result occurs because
early voting detracts from the energy of Election Day and the
mobilization efforts of campaigns and GOTV efforts of political
activists.
(Id. at 97–99; see also Def. Ex. 346 at 96 (“The law
of unintended consequences seems to have rendered early in-person
voting counterproductive to the goal for which it is often adopted:
increased voter turnout.”).)
Given these findings by Plaintiffs’ own experts, it is of
little surprise that there is no evidence in this case that North
Carolina’s introduction of early voting or use of seventeen days
of early voting caused increased political participation either
overall or for any racial subgroup.
That said, following national trends, North Carolinians have
begun using early in-person voting with increasing frequency.
For
73
At trial, Dr. Burden attempted to distance himself from his previous
article by saying that it only analyzed jurisdictions first implementing
early voting.
However, the article’s explanations for the depressed
turnout, expressed before Dr. Burden was retained in this case, are not
so limited.
For these reasons, the court finds Dr. Burden’s prelitigation analysis more reliable.
See Fed. Rule Evid. 702 advisory
committee notes (noting that courts consider “[w]hether experts are
‘proposing to testify about matters growing naturally and directly out
of research they have conducted independent of the litigation, or whether
they have developed their opinions expressly for purposes of testifying’”
(quoting Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1317 (9th
Cir. 1995))).
129
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example,
in
2000,
89.3%
of
North
Carolinian
Election Day, while only 8.1% voted early.
voters
voted
on
(Pl. Ex. 42 (Ex. 36).)
In 2008, however, early voting saw the greatest increase in use
ever and constituted the most popular method of voting, being used
by 48.7% of North Carolinian voters.
(Id.)
In 2014, only 37.4%
of voters used early voting, compared to 60.0% voting on Election
Day.
(Pl. Ex. 242 at 159.)
Thus, while early voting has become
increasingly popular, its popularity in relation to Election Day
voting varies by year and election cycle.
The rates of early voting by racial subgroups also varies.
Among voters for North Carolina general elections held from 2000
to 2012, white and African American use was nearly the same, except
for three elections. 74
(Pl. Ex. 40 at 15.) In the 2004 general
election, white voters disproportionately used early voting over
African American voters by a difference of 5.39%.
(Id.)
In the
2008 general election, early voting’s largest increase in use
coincided with President Obama’s candidacy, when African American
voter use exceeded white voter use by 15.89%.
(Id.)
The disparity
74
Broken down by year, 19.83% of African Americans and 25.22% of white
voters voted early in 2004; 60.36% of African Americans and 44.47% of
whites voted early in 2008; and 64.01% of African Americans and 49.39%
of whites voted early in 2012. (Pl. Ex. 40 at 15). In 2000, 2002, and
2010 the white and African American use of early voting differed by less
than one and a half percentage point. (Id. (8.99% African American/7.88%
white in 2000, 5.21% white/4.93% African American in 2002, and 28.53%
African American/28.36% white in 2010).) In 2006, 11.95% of whites used
early voting, compared to 9.19% of African Americans. (Id.)
130
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was similar but slightly less in degree in the 2012 general
election during President Obama’s re-election campaign.
(Id.)
However, a similar disparity in African American use was observed
in 2014, even after SL 2013-381 became effective.
159.)
(Pl. Ex. 242 at
Overall, African American use of early voting has exceeded
African American use of Election Day voting only in 2008 and 2012.
(Id.)
The same is true of white voters. 75
(Id.)
Results also vary when broken down by the first seven days of
early voting removed by SL 2013-381. 76 From 2006 to 2012, 2,128,693
votes were cast during the first seven days of early voting -1,429,667 by whites, and 616,483 by African Americans.
40 at 30.)
(Pl. Ex.
Thus, 67.16% of these votes were cast by whites, while
28.96% were cast by African Americans.
(Id.)
Whites used the
first seven days of early voting at a higher rate than African
Americans in 2006 and 2010, while African Americans used the first
75
Those are the proportional numbers. In terms of actual numbers of
early votes cast, there have always been more white than African American
early votes cast.
(Pl. Ex. 40 at 22.)
Even in 2008, when African
American voters used early voting more than in any other election, there
were more than twice as many white early voters as African American early
voters. (Id.) In the 2012 primary election, there were more than five
times as many white early voters as African American early voters. (Id.)
The court provides these figures here and elsewhere only for the sake
of comprehensiveness but has not relied on them to reach any legal
conclusion, for discriminatory intent or otherwise.
76
When analyzed as a proportion of first week voters, the African
American/white numbers are as follows: 2006 general (8.58%/90.03%); 2008
primary (31.50%/65.27%); 2008 general (31.88%/64.24%); 2010 primary
(21.92%/75.05%);
2010
general
(17.58%/80.25%);
2012
primary
(16.12%/79.62%); 2012 general (32.93%/62.47%). (Pl. Ex. 40 at 30.)
131
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 137 of 485
seven days at a higher rate than whites in 2008 and 2012.
Accordingly,
the
evidence
shows
that,
although
(Id.)
African
Americans disproportionately used the first seven days in the
aggregate, racial disparity turns on whether the election is a
midterm or general election.
(Id.)
Moreover, the last ten days
of the seventeen day early-voting period were the ones most heavily
used, even by African American voters. 77
(See Def. Ex. 362 at 1–
3; Doc. 338 at 134–41.)
In terms of age, the turnout of registered “young” voters
(those aged 18 to 24, by the Plaintiffs’ own definition) increased
from 17.5% in 2010 to 18.0% in 2014. 78
(Def. Ex. 309 at 78.)
The
77
Additionally, in the 2014 general election, by the second day of early
voting (day nine on the pre-SL 2013-381 schedule), the cumulative number
of African American voters had already surpassed the cumulative total
from the first nine days of the seventeen day schedule in 2010. (Def.
Ex. 268 at 42-43.)
78
Plaintiffs’ expert, Peter Levine, Ph.D., stated in his sur-rebuttal
report that young voter turnout decreased from 16.7% in 2010 to 16.4%
in 2014, disagreeing with Dr. Thornton’s figures. (Pl. Ex. 248 at 1.)
Dr. Thornton testified at trial that she reviewed this criticism,
confirmed her original calculations, and compared her results with those
reported on the SBOE website, which were “nearly identical.” (Doc. 338
at 118.) The difference appears to arise because Dr. Levine believes
that turnout as a percentage of voting age population (“VAP”) is a better
figure to use than Dr. Thornton’s use of turnout as a percentage of
registered voters. (See Pl. Ex. 236 at 15 (tbl. 2b).) Dr. Levine’s
method differs from the use of citizen voting age population (“CVAP”)
in that he counts non-citizens as potential voters, even though they are
not eligible to vote.
(See Doc. 338 at 109.)
Because Dr. Levine’s
figures are not limited to eligible voters (i.e., citizens), the court
finds that Dr. Thornton’s figures are a better representation of turnout
than Dr. Levine’s for the purposes of this case, even though Dr.
Thorton’s figures give a narrower window on the changes. CVAP would be
preferable, where available.
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Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 138 of 485
number of registered young voters also increased from 9.7% in 2010
to 10.4% in 2014.
(Id. at 77.)
The number of young early voters
during that period appears to have decreased by 9.3%, according to
Plaintiffs’
expert
Peter
Levine,
Ph.D.,
Associate
Dean
for
Research in the Jonathan Tisch College of Citizenship and Public
Service at Tufts University. 79
(Pl. Ex. 236 at 22–23.)
Young
early voters are disproportionately likely to put off voting until
the last day of early voting.
(Id. at 22.)
To look at the impact of the change in the early-voting
schedule, it is helpful to compare specifically the 2014 midterm
general election — the first general election under SL 2013-381 —
to the prior comparable midterm general election in 2010.
If
having fewer days of early voting harms political participation,
one might expect there to be evidence of decreased turnout between
the elections.
Plaintiffs’ expert, Dr. Gronke, predicted as much
to this court in the run-up to the 2014 general election:
I conclude from the analyses in this report that the
changes to early in-person voting that I have reviewed
— eliminating the first seven days of one-stop early
voting — will have a differential and negative impact on
the ability of African Americans to cast a ballot in
North Carolina. I know of no empirical argument by which
one could conclude that African-American voters — or any
voters for that matter — will successfully adjust to 40%
fewer early voting days, regardless of the possibility
of longer hours on those days.
79
Dr. Levine was proffered as an expert in civic engagement and the
effects of voting laws on youth voting without objection. (Doc. 334 at
102.)
133
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 139 of 485
(Pl. Ex. 40 at 39.)
adverse impact.
Dr. Stewart made similar predictions of
(Pl. Ex. 42 at 56–59, 89 (“Provisions in HB 589
intended to ameliorate the reduction in early voting days are
unlikely to succeed.”)
These analyses were cited by Plaintiffs to
support their claimed need for a preliminary injunction in this
case.
Contrary to these prognostications, however, turnout in the
2014 midterm general election (compared to the 2010 midterm general
election),
whites
actually
after
SL
increased
2013-381.
for
(Def.
both
African
Ex.
309
at
Americans
59–62.)
and
More
pertinent, the 2010 disparity in turnout rates between white and
African American voters decreased in 2014, after SL 2013-381.
(Id.)
African American use of early in-person voting increased by
7.2%, which exceeded the 1.9% increase observed among whites and
the 1.6% increase among Hispanics.
numbers
are
contrary
to
(Id. at 68–69.)
Plaintiffs’
experts’
These turnout
predictions
and
contradict the claim that SL 2013-381 has a negative, disparate
impact on African Americans or Hispanics.
Def. Ex. 268 at 35.)
(See also id. at 62;
As an apparent response to this data,
Plaintiffs articulate their claim that, while they have increased
their registration and turnout, it has become harder for them to
do so.
But this is unpersuasive.
Drs. Gronke and Stewart reached their inaccurate predictions,
in part, by extrapolating from Florida’s experience when it reduced
134
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early voting from fourteen to eight days. 80
Brown v. Detzner, 895
F. Supp. 2d 1236, 1239 (M.D. Fla. 2012); (Pl. Ex. 40 at 25–29; Pl.
Ex. 42 at 83).
But, just as Florida’s experience proved to lack
any predictive power for North Carolina’s 2014 midterm election,
so, too, the court finds it unpersuasive for predicting the 2016
general election.
In Florida’s 2012 general election, after the reduction of
six days of early voting, there was significant congestion and a
decrease in the number of early voters when compared to 2008.
Ex.
42
at
83–87.)
In
attempting
to
extrapolate
(Pl.
Florida’s
experience to North Carolina, however, Plaintiffs’ experts failed
to consider several material differences between the two States’
programs, including the type, quantity, and quality of the voting
machinery; the capacity or number of the early-voting facilities;
the complexity of the ballot; and the number of available poll
workers.
complex
(Doc. 333 at 73–76.)
ballot
in
2012,
with
Importantly, Florida had a fairly
multiple
referenda
languages, which likely affected congestion.
in
multiple
(Id. at 75–76; Doc.
335 at 52–54; Pl. Ex. 49 at 6 (Plaintiffs’ expert Theodore T.
Allen, Ph.D., Professor of Integrated Systems Engineering at Ohio
State University, opining that the length of the ballot directly
80
Yet another example of Plaintiffs’ reliance on other States’ practices.
Indeed, Plaintiffs frequently cited the experience of other States when
it was helpful to do so.
135
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 141 of 485
relates to congestion).)
Florida also offers fewer early-voting
sites than North Carolina.
(Def. Ex. 270 at 36–37.)
And while
“most” counties maintained similar hours as before, not all did or
were required to do so, as in North Carolina.
(Pl. Ex. 40 at 28.)
Compared to 2008, Floridians’ use of early voting declined by
10.7% in 2012, after eliminating six of its fourteen days of early
voting.
(Id. at 26.)
By contrast, after North Carolina reduced
seven days of early voting but introduced other compensating
reforms,
the
number
of
North
Carolinians
increased by 21.1% from 2010 to 2014.
Florida
involved
presidential
using
early
(Pl. Ex. 242 at 159.)
elections
while
North
voting
True,
Carolina
involved mid-terms, but the mid-term had highly contested races.
And SL 2013-381’s same hours requirement will ensure that in 2016
counties maintain the same number of hours as in 2012, the previous
presidential
election.
nothing like Florida’s.
So,
North
Carolina’s
experience
was
Plaintiffs have not shown that any voters
were deterred in 2014, nor have they offered persuasive evidence
that the 2016 general election will be any different.
Plaintiffs supported their congestion argument with a “waittime” analysis of early voters by Dr. Stewart.
The analysis was
based on his internet survey of persons who claimed to have voted
in the 2008 and 2012 general elections (before SL 2013-381).
In
his April 2014 report, Dr. Stewart concluded that North Carolina’s
early-voting lines were already congested in 2008 and 2012, based
136
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 142 of 485
on his survey data showing that 27.2% of North Carolina’s early
voters waited more than thirty minutes, compared to only 15.8% of
early voters nationwide. 81
that,
given
this
(Pl. Ex. 42 at 75.)
difference,
there
was
He opined at trial
greater
early
voting
congestion in 2014 than 2010 because early voting use increased
“roughly 20%” while available hours decreased 3%. 82
(Doc. 332 at
84.)
Dr. Stewart’s wait-time opinion suffers from a number of
important flaws, rendering it unpersuasive.
First, his conclusion
assumes that North Carolina’s early-voting system in 2010 was
operating at full capacity, such that any additional burden would
automatically result in greater wait times.
not supported by the record.
Such an assumption is
And to the extent that increased
wait times correlate with persons becoming too frustrated to vote,
the actual early-voting figures from 2014 demonstrate an increase
in the number of people successfully casting an early ballot.
Second,
Dr.
Stewart’s
surveys
were
based
on
very
few
81
Dr. Stewart organized his internet survey via the Survey of the
Performance of American Elections and selected the questions respondents
would be asked.
(Doc. 332 at 138–39.)
Respondents were recruited
through website pop-up ads and similar internet advertisements and were
promised points redeemable for prizes for completing the survey. (Id.
at 139-41.)
82
A decrease in hours in 2014 is not persuasive evidence that earlyvoting lines will worsen. Session Law 2013-381 requires that a CBOE can
reduce hours only upon unanimous agreement, strongly supporting a factbased inference that such extra hours were unnecessary in that county.
137
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observations.
In 2008, only ninety-five respondents claimed to
have been North Carolina early voters; in 2012, only ninety-one,
and in 2014, 425. 83
16).)
(Pl. Ex. 42 (Ex. 42); Pl. Ex. 242 at 85 (tbl.
Looking at just 2014, Dr. Stewart extrapolated the sampled
survey responses of the 425 purported North Carolina early voters
onto a population of 1,097,942 early voters.
159.)
(See Pl. Ex. 242 at
Conclusions drawn from this data are subject to a high
margin of error. 84
(See Def. Ex. 246 at 22–23; Def. Ex. 309 at 79–
87.)
Third, the survey responses themselves have plain indicia of
unreliability.
For the 2014 survey, 73.8% of respondents claim to
have voted either on Election Day or through early voting.
Ex. 242 at 85.)
(Pl.
However, this figure far exceeds North Carolina’s
overall turnout rate for the 2014 general election, which was only
38.8% of the voting age population.
U).)
(Pl. Ex. 242 at 161 (App’x
Thus, either the survey respondents were untruthful about
whether they voted – perhaps in hopes of being compensated (in
83
In 2014, North Carolina was “oversampled”: after surveying 200 North
Carolina respondents, an additional 1,000 were also sampled. (Pl. Ex.
242 at 84–86.) The oversampling seems to have been at Dr. Stewart’s
suggestion.
84
The survey questions were also open to variable interpretations among
respondents. (Def. Ex. 309 at 80.) In addition, the survey did not
reveal any statistically significant difference in wait times
encountered by African Americans and whites. (Id. at 84–87.)
138
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which case their voting experiences are highly suspect), 85 or the
survey
has
an
inherent
bias
toward
selecting
actual
voters
motivated to comment, showing that the sampling is far from random.
The former would be consistent with the testimony of Plaintiffs’
experts
throughout
the
trial,
who
noted
that
certain
survey
respondents of the decennial Census Current Population Survey
(“CPS”) consistently over-report whether they have voted.
e.g., Doc. 339 at 111.)
(See
Either way, the survey is suspect.
Fourth, even assuming the respondents truthfully reported
whether they voted, the survey design assumes a level of human
memory that is unrealistic. 86
When the respondents went to vote,
they had no idea they would later be asked to calculate the number
of
minutes
they
spent
waiting
and
voting.
Given
that
some
respondents voted early but were not surveyed until a week after
Election Day, they were asked to recall their wait times from up
to nineteen days earlier.
In addition, Defendants’ evidence indicated that long wait
85
It is notable that Dr. Stewart’s survey could have asked for
identifying information, which would have permitted him to confirm,
through information publicly available on the North Carolina SBOE
website, whether respondents had in fact voted. But Dr. Stewart made
no such effort to do so. (Doc. 332 at 143–44.)
86
Respondents were asked: “Approximately, how long did you have to wait
in line to vote?” (Pl. Ex. 42 at 74.) The available responses were:
“(1) Not at all, (2) Less than 10 minutes, (3) 10-30 minutes, (4) 31
minutes – 1 hour, (5) More than 1 hour [with follow-up prompts], and (6)
I don’t know.” (Id.)
139
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times were not common in the 2014 general election. 87
For example,
the SBOE surveyed all CBOEs (who are presumably more attuned to
focusing on wait times than Dr. Stewart’s internet respondents)
after the November 2014 general election as to early voting and
Election Day wait times.
(Def. Ex. 210.)
Of the 368 early-
voting sites, the vast majority (64 counties) reported wait times
of 0-30 minutes, and 23 counties reported experiencing a wait time
of 30-60 minutes.
(Id. at 4.)
Only thirty-six early-voting sites
reported wait times of more than an hour, and those were either on
the first two days or last three days of early voting, with thirty
occurring on the last day.
(Id. at 3.)
For the middle five days
of early voting, no site experienced wait times greater than an
hour.
(Id. at 3-4.)
Day waits.
The
Similar figures are reported for Election
(Id. at 5.)
SBOE’s
survey,
methodological shortcomings.
however,
suffers
from
its
own
First, there is no evidence that
CBOEs were notified that they would be asked about wait times until
after the election.
(Pl. Ex. 817 at 73-74.)
Second, it does not
appear that CBOEs had any mechanism to measure wait times.
id.)
(See
Nevertheless, if a significant voting problem occurs, CBOEs
are likely to learn of it.
Accordingly, while the SBOE’s survey
87 Some of the voting lines from 2014 were caused by electronic touchscreen equipment, (Def. Ex. 210 at 6), which Dr. Stewart believes to
cause lines, (Doc. 332 at 148–49), and which is set to be phased out by
SL 2013-381, § 30.8.
140
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has
its
own
reliability
problems,
it
is
some
evidence
that,
contrary to Dr. Stewart’s assertions, major wait-time problems did
not occur in the 2014 general election.
For all of these reasons, the court declines to credit Dr.
Stewart’s wait-time analysis. 88
An additional reason Plaintiffs’ experts’ predictions did not
come to pass is that they refused to engage in meaningful analysis
of SL 2013-381’s same-hours requirement.
election,
Dr.
Stewart
opined
that
Before the 2014 general
North
Carolinians
most
frequently early vote in the middle of the day; he believed that
any new hours added to satisfy the same-hours requirement would
have to be added at less-used times, such as in the evenings.
From
this, he opined that the same-hours requirement would have little
ameliorative effect on the reduction of early-voting days.
(Pl.
Ex. 42 at 75-79.)
This opinion made little sense then and has been further
discredited by the results of the 2014 general election.
Dr.
Stewart examined figures from 2012, which showed that most early
88
Another of Plaintiffs’ experts, Dr. Allen, relied on Dr. Stewart’s
wait-time analysis to try to predict wait times on Election Day in 2016.
(Pl. Ex. 49 at 14.) Dr. Allen’s opinion is vulnerable, in part, because
it relied on Dr. Stewart’s unreliable analysis. Moreover, Dr. Allen’s
analysis merely gave various possible effects based on the numbers of
early voters transitioning to Election Day voting.
However, it is
unknown how many net voters — if any — will transition. Dr. Allen also
failed to factor into his analysis SL 2013-381’s same-hours requirement,
a critical component of the new early-voting schedule. Therefore, Dr.
Allen’s analysis is of little assistance.
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voters went to the polls between 11:00 a.m. and 4:00 p.m.
77.)
(Id. at
From this use data, he concluded that voters prefer to vote
in the middle of the day and will be neither able nor willing to
vote at other times of the day.
(Id. at 76–79.)
However, before
SL 2013-381, relatively few evening or weekend hours were offered.
(See Pl. Ex. 242 at 80 (fig. 12).)
Therefore, while patterns of
early-voting use could have been a function of voter preference,
it
appears
more
likely
they
were
a
function
of
early-voting
availability.
A
simple
example
Stewart’s logic.
reveals
the
false
assumptions
in
Dr.
One of Plaintiffs’ challenges to the reduction
of early-voting days is that African American voters prefer to
vote
early
on
that
first
Sunday
transportation to polling sites.
when
their
church
However, in 2010, no African
American voted on the first Sunday of early voting.
at 40.)
provides
(Def. Ex. 268
One might conclude, therefore, that African Americans do
not prefer to vote on Sundays.
But that would be wrong because,
in fact, no county elected to offer early voting on the first
Sunday during early voting in the 2010 midterm election.
126-4 at 45-90.)
(See Doc
Therefore, use can be a function of mere
availability, not necessarily preference.
Similarly, based on the 2014 data, it is clear that North
Carolinians respond to new early-voting opportunities.
In 2014,
counties complied with the same-hours requirement by expanding
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evening and weekend hours.
(See, e.g., Pl. Ex. 242 at 80, 167.)
Looking at the data, it is apparent that the change in use from
2010 to 2014 followed the change in availability.
The number of
available weekday evening hours (from 5:00 p.m. to 8:00 p.m.)
increased by 75.6%, and the number of votes cast during evening
hours increased by 87.6%.
(Pl. Ex. 242 at 167–68.)
Likewise, the
number of available weekend hours increased by 55.4%, while the
number of weekend votes increased by 42.2%.
(Id.)
Evening hours
are more convenient for many voters than midday hours because
citizens can vote after leaving work.
(See Doc. 335 at 80.)
In addition, SL 2013-381 resulted in more early-voting sites
than were available not just in the previous 2010 midterm, but in
the 2012 presidential election as well.
(Doc. 340 at 205; Def.
Ex. 13 (showing a 24.32% increase in early-voting sites from 2010
to 2014).)
Even more hours and sites will be available in 2016.
(Doc. 340 at 206.)
Even if preferences can be inferred from use, an inference
Dr. Stewart consistently tries to draw, then the data suggest that
voters “prefer” the early-voting schedule of 2014 over that of
2010 because, in actuality, they heavily used the new hours.
Actual 2014 turnout suggests strongly that the new early-voting
schedule did not deter voters and that the prior schedule was not
necessarily the preferred one.
Plaintiffs have urged that it will be difficult for voters –
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African Americans in particular - to adjust to the new earlyvoting schedule.
Dr. Gronke supplemented his 2014 report after
the 2014 general election to conclude that African American early
voters from 2012 were more likely not to vote in 2014 than white
voters, thus asking the court to infer that such voters were likely
deterred by the new early-voting schedule.
He did this through a
“voter transition” analysis, explaining:
[R]ather than look at aggregate turnout totals, we can
examine the behavior of individual early voters before
and after the reductions to early voting were
implemented. This transition analysis has the advantage
of comparing the same pool of voters across different
elections and different legal contexts, and focuses on
voter behavior at the individual level, rather than on
aggregate vote totals. This is perhaps the best way to
try to isolate the impact of the legal changes on an
individual’s tendency to cast a one-stop ballot.
(Pl. Ex. 234 at 11.)
Dr. Gronke identified white and African American voters who
had voted early in 2012 to examine how they voted in the 2014
midterm election.
He provided an illustration of his analysis,
(id. at 12 (fig. 4)), and pointed to multiple disparities.
First,
39.41% of African American 2012 early voters did not vote at all
in the 2014 midterm election, which Dr. Gronke denominates a “dropoff rate,” compared to only 31.86% of white early voters.
(Id.)
White 2012 early voters were also more likely to vote early again
in 2014 or to vote on Election Day in 2014 compared to African
Americans.
(Id.)
From these disparities, he concludes, “There
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are a number of possible, non-mutually exclusive, reasons for these
disparities.
But they provide some evidence that, contrary to the
claim that voters can easily adapt to a shorter period of time for
early voting, African American voters may have been less able to
adapt than were White voters.”
(Id. at 13.)
A more comprehensive analysis, however, reveals that Dr.
Gronke’s “disparities” are actually part of a pattern unrelated
to, and in fact pre-dating, SL 2013-381.
Overall, Dr. Gronke’s analysis disguises the fact that white
turnout levels frequently exceed African American turnout levels
in midterms, but that African American turnout levels have exceeded
white turnout levels in the 2008 and 2012 presidential elections.
(Pl. Ex. 242 at 161 (App’x U).)
More importantly, Dr. Thornton applied Dr. Gronke’s method of
transition
analysis
of
comparable
transition
2012-2014
to
2008-2010,
(presidential-to-midterm),
period not impacted by SL 2013-381.
the
previous
which
was
a
She found similar disparities
between whites and African Americans as Dr. Gronke had found for
the impacted transition period — except that the disparities were
even greater in the 2008-2010 transition.
Among African American
early voters in 2008, 41.18% did not vote in 2010, compared to
only 33.14% of whites.
African
American
(Def. Ex. 309 at 73.)
drop-off
disparity
from
Thus, the white-
2008-2010
decreased in the 2012-2014 transition analysis.
actually
(Compare id.,
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with Pl. Ex. 234 at 12 (fig. 4).)
The racial disparity in whether
an early voter was likely to vote early again also decreased from
the 2008-2010 period to the 2012-2014 period.
(Id.)
Thus, if a
voter transition analysis “is perhaps the best way to try to
isolate the impact” of SL 2013-381, as Dr. Gronke urges, then his
conclusion is wrong, and the reduction in early-voting days tends
to benefit, rather than harm, African American voters.
Further
undermining
Plaintiffs’
contention
that
African
Americans are less able to adjust to the remaining days of early
voting is Dr. Thornton’s drop-off transition analysis regarding
users of the eliminated seven days of early voting. She identified
those who voted early during the first seven days in 2010 and
examined whether they voted in 2014.
(Def. Ex. 362 at 1.)
She
found that those who voted in the first seven days of early voting
in 2010 were more likely to have voted in 2014 than those who voted
in the last ten days.
(Id.; Doc. 338 at 134–41.)
This conclusion
is valid for both African American and white voters.
362 at 1.)
(Def. Ex.
Dr. Thornton conducted similar analyses for the
transition periods of 2008-2010 and 2012-2014.
(Id. at 2-3.)
She
found that those who voted during the first seven days of early
voting in 2012 were more likely to vote in 2014 than were the same
2008 early voters transitioning to 2010.
(Id.)
Importantly, this
conclusion is valid for both African American and white voters.
(Id.)
Accordingly, although Plaintiffs have established that
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African Americans disproportionately used the first seven days of
early voting during general elections, Dr. Thornton’s analysis
tells us something about these early voters regardless of their
race: they are not the marginal voter, but instead are more
motivated and adaptable than other early voters.
Plaintiffs also offered the testimony of several fact witness
in support of their claims. 89
Illustrative here is the video
testimony played at trial of two affected voters who explained
their problems with early voting and lines.
Tawanda Pitt, an
African American nurse and a resident of Wilson, North Carolina,
testified that she tried to vote on Election Day in 2014.
Ex. 798 at 8.)
(Pl.
The first time she arrived at her precinct, there
was a long line.
(Id. at 10.)
She understood that the precinct
would be receiving a new computer that would expedite the process,
so she left and returned two hours later.
(Id.)
According to Ms.
Pitt, the precinct had only two computers, which was down from the
four or five computers it had in the past.
(Id. at 10, 19.)
she returned, however, the line was longer.
times she waited about “30, 35 minutes.”
(Id. at 10.)
(Id. at 11.)
When
Both
She gave
up the second time when the poll worker could not tell her when
the new computer would arrive, (id. at 23), so she could fix dinner
89 Plaintiffs submitted the deposition transcripts of sixty-five fact
witnesses. At trial, however, Plaintiffs highlighted only a handful of
them. The court presumes those were Plaintiffs’ stronger witnesses, but
it has nevertheless reviewed the transcripts of all fact witnesses.
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and help her son with his homework, (id. at 25).
She ended up not
voting in 2014.
It
is
unfortunate
that
Ms.
Pitt
did
not
vote,
but
her
difficulties, and the line she experienced, were at least in part
due to technological difficulties (fewer computers than in prior
years) not attributable to SL 2013-381.
Put simply, SL 2013-381
did not change the number of computers available to precincts on
Election Day.
In addition, Ms. Pitt had not tried to vote early
and did not know how long the lines were during early voting.
(Id.
at 25.)
Sherry Durant is African American and, due to her cerebral
palsy,
lives
mobility.
in
a
group
home,
(Pl. Ex. 721 at 6, 9.)
which
severely
restricts
her
She wanted to vote in 2014, but
was incapable of getting herself to a polling place.
(Id. at 12.)
Several other residents at the group home also wished to vote.
(Id. at 17.)
A group home worker, Ms. Graves, proposed to take
them all to vote in person.
(Id.)
It was clear that Ms. Durant
was not aware of how many days of early voting were offered before
or after SL 2013-381.
(Id. at 19.)
Ms. Durant testified that Ms.
Graves was not able to organize a voting trip for any of the
residents during the early-voting period or on Election Day.
at 17-18.)
(Id.
Ms. Graves did not testify, but Ms. Durant claimed
that every day Ms. Graves planned to take the residents to vote
“one of [the] residents had to go to the doctor or [Ms. Graves]
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had to go to the doctor herself or [Ms. Graves] needed to be
present elsewhere or it was just chaotic.”
(Id. at 28.)
Ms.
Durant did not know Ms. Graves’ schedule in the previous seven
days, when early voting would have been available without SL 2013381, and there is nothing in Ms. Durant’s testimony that suggests
that Ms. Graves’s availability would have been any different then.
(Id.)
Finally,
Plaintiffs
contend
that
the
new
early-voting
schedule disproportionately burdens African Americans by removing
a
“souls-to-the-polls” 90
Sunday.
However,
the
evidence
demonstrated that many churches who provide Sunday transportation
also provide transportation to the polls throughout the earlyvoting schedule.
(E.g., Pl. Ex. 793 at 27-28.)
Accordingly, in
addition to retaining one Sunday, these churches are positioned to
take advantage of the additional night and weekend hours created
by the same-hours requirement.
In
sum,
the
court
has
evaluated
all
of
the
evidence
surrounding the impact resulting from the change in the earlyvoting schedule.
In light of the same-hours requirement, the
evidence does not demonstrate that the new early-voting schedule
results in a reduced opportunity to vote or imposes a burden on
90
These are church-related efforts to engage congregants and provide
resources to get them to the polls to vote, including during Sunday early
voting.
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voters.
Nor
does
the
evidence
show
that
the
new
schedule
disparately and negatively impacts the political participation of
African Americans, Hispanics, 91 or young voters. 92
Contrary to all of Plaintiffs’ dire predictions, turnout
actually increased for all voters under SL 2013-381. In many ways,
the new early-voting schedule is an improvement for all North
Carolina voters. Comparing 2010 to 2014, the new schedule resulted
in 24.32% more early-voting sites, 72.14% more evening hours (with
45
counties
newly
offering
evening
hours),
4
counties
newly
offering Sunday hours, and 26.62% more Sunday hours overall. (Def.
Ex. 13.)
There was also no persuasive evidence that the new
schedule increased lines at early-voting centers or that such lines
deterred minority voters.
(See Doc. 332 at 160-61.) 93
Conversely,
91
Plaintiffs have not provided any evidence that Hispanic voters
disproportionately used early voting. (See, e.g., Doc. 346 discussing
Hispanics only with regard to SDR, OOP, and preregistration). In fact,
the evidence Plaintiffs’ experts provided on racial disparities in the
eliminated seven days of early voting do not include Hispanics. (See,
e.g., Pl. Ex. 40 at 30; Pl. Ex. 42 (Ex. 41).) Accordingly, Plaintiffs
have failed to show that Hispanic voters have been disparately impacted
by SL 2013-381’s change in the early-voting schedule based on
disproportionate use.
92
The evidence as to young voters was that they did not focus on elections
until closer to Election Day, but, like other groups, there was no
evidence that young voters will not benefit from the additional night
and weekend hours created by SL 2013-381.
93 Plaintiffs’ evidence of voters waiting was largely anecdotal and not
representative of any systemic issue. (E.g., Doc. 330 at 110-12 (Isabel
Najera: waited “around two hours,” but her delay was attributable to a
poll worker’s investigation after discovery that she was not listed on
the voter roll); Pl. Ex. 792 at 13-14 (Quisha Mallette: UNC law student
who “had to sit in there for a little while” while waiting to vote
provisionally because she did not switch her registration to her county
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there
is
no
credible
evidence
that
the
old
schedule
itself
increased political participation generally or among any subgroup
of voters; the previous academic consensus was to the contrary.
What can be said is that all parties acknowledge that strong
minority use of early voting in 2008 and 2012 was a result, in
some measure, of a Democratic campaign strategy in North Carolina,
particularly
President
Obama’s
campaign,
which
specifically
encouraged the use of early voting over Election Day voting. (Def.
Ex. 270 at 58–62; Doc. 331 at 90–91 (Dr. Burden: stating that the
Obama campaign “emphasized [early voting] fairly heavily”); Doc.
332 at 158–59 (Dr. Stewart: stating that it is “certainly true”
that the “Obama campaign had an impact on the modes of voting by
Obama supporters”).)
There
was
also
no
persuasive
evidence
that
voters
were
habituated to the old schedule or had any difficulty adjusting to
the new schedule.
In fact, voters who testified at trial did not
even seem to be aware of how many days were offered under the old
or new law without being prompted by Plaintiffs’ counsel.
(E.g.,
Doc. 331 at 167-69, 173 (Nadia Cohen: did no research into voting
deadlines, conceding that “voting is not my top priority”); Pl.
Ex. 721 at 19 (Sherry Durant: “it was basically going from what
of residence); Pl. Ex. 798 at 19, 25 (Tawanda Pitt: did not try to early
vote and left polls on Election Day after waiting thirty-five minutes
on two occasions).)
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did you say, 15 to ten” days).)
For these reasons, Plaintiffs have failed to show that it is
harder for any voter, including African Americans, to vote under
the
ten-day
early-voting
schedule
given
the
same-hours
requirement. Plaintiffs’ predictions for the 2016 presidential
election are unpersuasive, and the 2014 results demonstrate that
the ten-day voting schedule and the same-hours requirement combine
to produce more high-convenience voting hours.
In addition, the
evidence shows that, regardless of race, those who voted during
the first seven days of early voting under the seventeen-day earlyvoting schedule are more likely to vote under the ten-day schedule
than are those who voted in the last ten days of the former
seventeen-day schedule.
Likewise, the evidence indicates that
churches are positioned to take advantage of the new voting sites
and hours in their GOTV efforts.
ten-day
early-voting
schedule
For these reasons, while the
makes
early
voting
different,
Plaintiffs have failed to prove that it makes voting harder.
3.
Elimination of SDR
During the six years it was permitted, SDR allowed citizens
to register and then vote at an early-voting site during the earlyvoting period.
Session Law 2013-381’s elimination of SDR returned
North Carolina to the pre-2007 state of affairs, and voters must
comply with North Carolina’s twenty-five day registration cut-off
in order to be eligible to vote.
Even after the repeal of SDR,
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however, a voter who has moved within his county may update his
registration information, including a change of address, during
early voting or on Election Day, and vote.
See N.C. Gen. Stat.
§ 163-82.6A(e).
SDR had limitations.
It was available only during the early-
voting period and not on Election Day (the latter being known as
Election Day Registration (“EDR”)).
It was also available only at
designated early voting sites in the county in which the citizen
resided.
See 2007 N.C. Sess. Law 253, § 1.
SDR was unavailable
in the gaps between the twenty-five day cut-off and the start of
early voting, and following the close of early voting to Election
Day.
Moreover, because North Carolina requires residency in the
assigned precinct for thirty days before any election, N.C. Gen.
Stat. § 163-55(a), SDR did not aid a voter who had moved within
thirty days of an election who sought to register to vote for
elections specific to his new precinct (although even now, if he
had moved to his new precinct within the same county more than
thirty days before the election, he can update his registration as
an unreported mover and vote the full slate in his new precinct).
Plaintiffs’ expert, Dr. Stewart, described the type of person
who tended to use SDR:
Some people register in “blackout periods” in the weeks
preceding elections.
Based on research about voter
registration in the political science literature, it is
clear that many of the registrations that occur during
blackout periods are people who are not normally
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attentive to public affairs, who have become attuned to
politics during the presidential election season — a
brief period every four years where matters of politics
and elections dominate a wide variety of media channels.
(Pl. Ex. 42 at 48.)
When it offered SDR, North Carolina was in a small minority
of States that did so. 94
Three States offer EDR - a very different
electoral mechanism - but not SDR.
(Def. Ex. 270 at 29–31.)
Twelve jurisdictions offer both EDR and SDR; this figure includes
the District of Columbia, as well as North Dakota, which does not
require registration at all.
(Id.)
Currently, thirty-six States,
including North Carolina, offer neither SDR nor EDR. 95
(Id.)
In
fact, before SL 2013-381, North Carolina was the only State in the
Nation to offer only SDR during early voting. 96
Plaintiffs’ experts claim that SDR boosts turnout.
(Doc. 342
at 130-31.) But there is no reliable statistical evidence that
94
Whether certain States should be classified as offering SDR or EDR is
subject to interpretation and coding. (Def. Ex. 270 at 29-31.) However,
it was undisputed at trial that the majority of States do not offer SDR
or EDR. (Doc. 331 at 101 (Plaintiffs expert, Dr. Burden, conceding that
a majority of States do not offer SDR)).
95
At the time of his report, Defendants’ expert Sean Trende put this
number at thirty-seven. (Pl. Ex. 270 at 29-32.) In that report, Vermont
was coded as having neither EDR nor SDR, but appears to have enacted
some variation since. Vt. Stat. Ann. tit. 17, § 2144a(4) (effective
January 1, 2017); (Doc. 340 at 15 (Trende: saying that Vermont enacted
SDR “a few weeks” before trial); see also McCrory, 997 F. Supp. 2d at
351 n.34 (setting forth registration cut-off dates for States without
EDR or SDR, many of which are longer than the twenty-five day cut-off
period in North Carolina, (e.g., Alaska Stat. Ann. § 15.07.070(c)-(d)
(30 days); Ariz. Rev. Stat. Ann. § 16-120 (30 days); Ark. Code Ann. § 75-201(a) (30 days)).
96 Ohio had “Golden Week,” when normal registration overlapped with early
voting for five days. (Def. Ex. 270 at 31-32.)
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this is so.
As recently as a January 2014 article, Plaintiffs’
own expert, Dr. Burden, found that while his statistical analyses
“suggest” that SDR has the potential of offering a mechanism to
enhance the mobilization of certain voters, the results are not
statistically
significant
(i.e.,
the
95%
includes the null hypothesis of no effect).
02.)
confidence
interval
(Def. Ex. 348 at 101-
Similarly, a 2011 study involving North Carolina’s 2008
general election found it “impossible” to isolate the effect of
SDR in turnout.
(Def. Ex. 346 at 93 (noting that the variable
measuring both SDR and competitive gubernatorial races showed “no
statistically significant influence on turnout” because of no
comparative data).
The
effects
Thus, no reliable conclusions can be drawn.
of
EDR
are
quite
different.
The
academic
consensus is that EDR has a consistent, positive effect on turnout.
As Plaintiffs’ own expert, Dr. Burden, explains:
The only consistent way to increase turnout is to permit
Election Day registration. Early voting reduces turnout
by robbing Election Day of its stimulating effects. This
depressant effect is only partially offset if SDR is
present or if EDR offers a vehicle for the last-minute
mobilization of marginal voters.
(Def. Ex. 348 at 108.)
Other researchers have confirmed this
finding, while also maintaining the important distinction between
EDR and SDR.
(See, e.g., Def. Ex. 346 at 78, 80, 89, 93, 96–97.)
Despite this body of scholarship, created in part by Dr.
Burden, other Plaintiffs’ experts were unaware of the different
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effects of SDR and EDR and carelessly comingled the two, scuttling
the difference.
For example, in his 2014 report, Dr. Stewart
references how EDR boosts turnout, (Pl. Ex. 42 at 51), a point
that has no relevance to the impact of adding or removing SDR in
North Carolina.
At trial, Dr. Stewart stated that the literature
supports the notion that SDR increases turnout. (Doc. 342 at 130.)
When pressed to identify this literature, however, he could only
point to a chapter in a book dealing with EDR (or combining EDR
with SDR).
(Id. at 130–31.)
Dr. Stewart testified that he was
unaware of any study that examined SDR separately from EDR.
at 131.)
(Id.
This was odd, since one of his co-experts, Dr. Burden,
had performed just such a study about which Dr. Burden testified
at trial.
Dr. Gronke went further than Dr. Stewart.
He cited the
relevant scholarship distinguishing the effects of SDR from EDR,
but totally mischaracterized the articles.
report,
Dr.
registration,
Gronke
there
wrote,
are
“For
In his April 14, 2014
same-day
essentially
no
or
Election
dissents;
Day
there
is
essentially universal agreement among scholars that this is an
election reform that has a substantially positive impact on voter
turnout.”
(Pl. Ex. 40 at 33.)
He went on to characterize Dr.
Burden’s article (Def. Ex. 348) as finding “a positive effect when
early voting was offered in conjunction with EDR, as was the case
in North Carolina prior to recent election law changes.”
(Pl. Ex.
156
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40 at 33–34 (latter emphasis added).)
Dr. Gronke conceded at trial that his SDR analysis was not at
all accurate.
positive
First, there is no scholarship finding an overall
effect
on
turnout
from
SDR,
since
it
requires
the
existence of early in-person voting, a mechanism that depresses
turnout.
What is troubling is that Dr. Gronke should have known
as much, since he had served as a peer reviewer of Dr. Burden’s
article prepared prior to this litigation. (Doc. 333 at 50-51.)
Second, contrary to Dr. Gronke’s representation, North Carolina
has never offered EDR.
(Id. at 53.)
As a result, the court finds
Drs. Stewart and Gronke unreliable on the scholarly literature on
SDR.
In 2014, before the preliminary injunction hearing in this
case, Dr. Gronke predicted, as he had regarding the reduction of
early voting, that the elimination of SDR would certainly reduce
African American turnout in the 2014 election:
I conclude from the analysis in this report that, because
same-day voter registration has been shown to be a strong
and consistent predictor of higher turnout, the
elimination of same-day registration during the election
process, whether during one-stop voting or on Election
Day, 97 will lower turnout overall.
In particular, I
conclude that eliminating same-day registration will
have a disparate impact on African-American voters
because they take advantage of same-day registration at
a significantly higher rate.
(Pl. Ex. 40 at 39 (emphasis added).)
97
Again, Dr. Gronke is misinformed.
This turned out to be a poor
North Carolina never had EDR.
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prediction
because,
as
noted
actually increased in 2014.
7.)
above,
African
American
turnout
(Def. Ex. 309 at 66; Pl. Ex. 229 at
Plaintiffs have provided no evidence in this case that the
African American share of the 2014 vote would have been any higher
had SDR (or OOP voting, or the first seven days of early voting)
not been eliminated.
Against this backdrop, it is not surprising
that Dr. Gronke avoided giving any opinions about SDR in his 2015
report.
(See Pl. Ex. 234.)
But he never amended his inaccurate
2014 report, despite reserving the right to do so.
(Pl. Ex. 40 at
39.)
In examining the use of SDR in North Carolina, it is helpful
first to examine the changes in registration rates.
SDR was only
in place for three general elections: 2008, 2010, and 2012.
2006,
African
American
registration
rates
exceeded
After
those
of
whites, and a disparity favoring the African American electorate
has been growing ever since.
(Pl. Ex. 684.)
Plaintiffs assert
that, since African American registration rates exceeded white
registration rates after SDR was implemented, this was most likely
because SDR was implemented.
Dr. Stewart has employed this post
hoc ergo propter hoc reasoning: “There is no doubt that the sameday registration vehicle has been an important part of the laudable
parity
in
black-white
Carolina . . . .”
registration
(Pl. Ex. 42 at 23.)
rates
achieved
in
North
Yet Dr. Stewart conceded
at trial that he had done no analysis to reach a causal conclusion.
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(Doc. 332 at 151–52.)
Being nothing but his ipse dixit, the court
need not, and does not, accept this conclusion.
See Gen. Elec.
Co. v. Joiner, 522 U.S. 136, 146 (1997) (“Nothing in either Daubert
or the Federal Rules of Evidence requires a district court to admit
opinion evidence that is connected to existing data only by the
ipse dixit of the expert.”).
A closer examination of the time period at issue reveals
something different.
Dr. Stewart presented the following findings
as to registrations among the voting age population (“VAP”):
(Pl. Ex. 684.)
From 2000 to 2006, when SDR was not in place, the
African American/white disparity shrank from 9.1% to 5.1%.
(Id.)
The disparity further shrank from 2006 to 2008, when SDR was first
implemented and President Obama first ran for national office, and
in fact resulted in a disparity advantaging the African American
electorate.
American
(Id.)
advantage
availability of SDR.
However, from 2008 to 2010, the African
remained,
(Id.)
but
declined,
despite
the
The African American advantage rose
159
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again in 2012, when President Obama ran for re-election.
(Id.)
Then, in 2014, after SDR had been eliminated, the African American
advantage in registration rates rose even further to 7.8%.
(Id.)
This was quite surprising given that, from 2008 to 2010, the
previous presidential-to-midterm election transition, when SDR was
available, the African American advantage fell.
(Id.)
Dr. Stewart supported his conclusion by performing a “churn”
analysis.
rolls.
The churn refers to the dynamic nature of the voter
The voter rolls are in constant flux: new registrations
add voters onto the rolls (e.g., those turning voting age or
migrating into the State); list maintenance removes voters from
the rolls (e.g., those who have died or migrated out of the State).
Dr. Stewart examined two two-year periods to demonstrate the net
effects
of
the
churn.
For
the
period
from
2010
to
2012
(transitioning from a midterm to a presidential election), when
SDR was in place, he found that 663,927 voters were removed from
the rolls, but that 1,112,412 voters were added; thus, there was
a net gain.
(Pl. Ex. 686.)
But in the period from 2012 to 2014
(from a presidential election to a midterm election), during which
SDR was eliminated, 662,305 voters were removed from the rolls,
and only 640,417 were added; thus, there was a net loss of 21,888
registrations.
(Id.)
From this analysis, Plaintiffs argue that
the repeal of SDR affects voter churn and will, over the long term,
negatively impact registration rates.
(Doc. 346 at 67.)
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As
it
turns
out,
however,
incomplete, if not misleading.
Dr.
Stewart’s
analysis
is
Defendants’ expert, Dr. Thornton,
widened the period for Dr. Stewart’s churn analysis to include the
period from 2008 to 2010 (from a presidential election to a
midterm), another period during which SDR was in place.
359.)
(Def. Ex.
She found that, during this period, 581,188 voters were
removed from the polls and only 517,181 voters were added — a net
loss of 64,007.
(Id.)
The churn for the 2008 to 2010 transition,
from a presidential election to a midterm election, was worse
(almost
three
times
so)
for
registration
rates
than
was
analogous 2012 to 2014 transition, when SDR was eliminated.
the
(Id.)
So, a more complete churn analysis seems to support, rather than
rebut, Defendants’ argument that the elimination of SDR does not
harm registration rates. 98
Plaintiffs point to the timing of the implementation of SDR,
arguing that the increase in registration rates in 2008 is strong
evidence of the benefit it provided.
However, the data show that,
before SDR was implemented, African American registration rates
98
At trial, Dr. Stewart conceded the accuracy of Dr. Thornton’s churn
analysis. (Doc. 342 at 126–27.) However, he refused to concede that
her figures undermine his conclusions. (Id.) Insofar as Dr. Stewart’s
opinions appear to be impervious to new facts or data and he was content
to present what he must have known was, charitably put, an incomplete
analysis, the court views his opinions with a skeptical eye. See, e.g.,
United States v. Williams, 731 F.3d 1222, 1230 (11th Cir. 2013); Gutheil
& Simon, Narcissistic Dimensions of Expert Witness Practice, 33 J. Am.
Acad. Psychiatry L. 55, 57 (2005) (“[R]efusing to concede even valid
points . . . seriously impairs credibility.”).
161
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were already increasing at a rate higher than those of whites.
And, after SDR was eliminated, African American registration rates
have continued to grow faster than those of whites. What confounds
the inquiry as to 2008 (and 2012) is that the largest increase in
African American SDR use coincides with the candidacy of the first
African American president of the United States, which Plaintiffs
concede has “surely” been a factor in the increase in African
American participation.
(Pl. Ex. 44 at 6.)
That said, Plaintiffs
downplay the role the President’s candidacy had in increasing
African American turnout in 2008 and 2012.
Yet, they also dismiss
the increase in African American turnout after SDR was repealed
because of what they characterize as an unusually heightened
interest
in
expensive.
North
Carolina’s
Senate
race,
the
Nation’s
most
While campaign effects surely play a role in these
elections, these are inconsistent positions. 99 Further confounding
the inquiry as to opportunity, burden, and cause is evidence that
African Americans in similarly-situated States that did not have
SDR in 2008 and 2012 also saw similar increases in African American
registration rates, as campaigns exploited registration and voting
opportunities available in those States.
(Def. Ex. 270 at 46.)
99
The large increase in African American participation in 2008, when
State spending was $22 million, compared to 2012, when State spending
was almost $100 million, is strong evidence that the novelty of the
candidacy of the first African American candidate for the presidency
played a significant role in turnout. (Def. Ex. 270 at 10-11.)
162
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In total aggregate numbers, it is indisputable that African
American voters disproportionately used SDR when it was available.
According to Dr. Stewart, African Americans comprised 35.5% of
registrants
during
the
SDR
period
for
the
2008
presidential
election and 32.0% of registrants during the SDR period for the
2012 presidential election, 100 which exceeded their roughly 22%
proportionate share of all registered voters. 101
46–47; Def. Ex. 309 at 76.)
(Pl. Ex. 42 at
Plaintiffs argue that they have become
burdened by the elimination of SDR because African Americans became
habituated to using SDR during its six years of availability.
Habituation is an individual-level characteristic, not an
aggregate
one.
(Doc.
333
at
64–65.)
Plaintiffs’
experts
acknowledged this and tracked individuals in their early-voting
analysis, but they did not do so for individual voters using SDR,
even though the data are available to do so.
Such an analysis
100
Dr. Stewart considered only those using SDR to become new North
Carolina registered voters. (Pl. Ex. 42 at 43–47.) Further, Dr. Stewart
focuses on those who registered during the early-voting period, rather
than on those who actually registered using SDR. These two numbers are
not necessarily the same. For example, in 2002, 2,326 African Americans
registered during the early-voting period. (Id. (Ex. 31).) Because SDR
did not exist, they clearly registered via the traditional method.
Accordingly, while the court accepts that those who register during the
early-voting period may be more likely to prefer SDR, which allows them
to vote, over non-SDR, which does not, Dr. Stewart’s data do not tell
us how those who registered during the early-voting period registered.
(Id. at 46-47.)
101
In raw numbers, far more whites used SDR during these two years. (Pl.
Ex. 42 at 46.) This fact is not considered in the calculus, however,
as it is the disproportionate use that is at issue.
163
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would be designed to determine whether whites or African Americans
were more likely to use SDR more than once. 102
Second, statistics about SDR use do not demonstrate what these
particular voters, of any race, would have done had SDR not been
an option, especially given that there are a multitude of easy
ways
to
register
in
North
Carolina
apart
from
SDR.
The
registration period is open year-round, but to be eligible to vote
in an election a registrant must register twenty-five days before
the applicable Election Day.
N.C. Gen. Stat. § 163-82.6(c).
Applications are available online at the SBOE website, at the SBOE,
CBOEs,
public
libraries,
public
high
admissions offices throughout the State.
schools,
and
college
Every State resident can
register to vote by mail, see N.C. Gen. Stat. § 163-82.6(a) (“The
county board of elections shall accept any form described in [N.C.
Gen. Stat. §] 163-82.3 if the applicant submits the form by mail,
facsimile transmission, transmission of a scanned document, or in
person.”), which permits the registrant to enlist the assistance
of a family member and others to navigate and complete the onepage, seven-question form, see id.; (see also Doc. 331 at 41-42).
102
Moreover, in the 2004 presidential election (before SDR), African
American voters were still disproportionately likely to register during
the early-voting period even though it would not enable them to vote in
the upcoming election. (Pl. Ex. 42 (Ex. 31).) It cannot be that these
African American registrants were habituated to using SDR, since SDR did
not exist.
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Thus, those with transportation, economic, or other challenges
need not physically appear to register. 103
Certain State agencies,
as required by the NVRA, 52 U.S.C. § 20506 (formerly 42 U.S.C.
§
1973gg-5),
also
offer
voter
registration
services.
Those
agencies include departments of social services and public health,
disability services agencies (vocational rehabilitation offices,
departments of services for the blind and hard of hearing, and
mental health departments), the North Carolina Employment Security
Commission, and, for those engaged in a DMV transaction (including
acquiring a no-fee voter ID), any DMV office, pursuant to N.C.
Gen. Stat. § 163-82.19.
(Doc. 126-1 at 4.)
The League Plaintiffs
acknowledged that these other avenues mean that “many people who
are of lower socioeconomic status have an opportunity to register
to vote elsewhere.”
(Doc. 167 at 135-36.)
In addition, State law permits any individual, group, or
organization
-
such
as
the
GOTV
efforts
conducted
by
some
Plaintiffs - to conduct a voter registration drive, without any
special training, pursuant to SBOE-published guidelines and with
materials the SBOE and CBOEs provide.
(Doc. 126-1 at 4.) 104
103
Cf. Miss. State Chapter, Operation Push v. Allain, 674 F. Supp. 1245,
1250-52 (N.D. Miss. 1987) (describing Mississippi law that initially
prevented all registration outside of the office of the county
registrar).
104 And, as noted, even after SL 2013-381, a voter who has moved within
the county can still update his or her registration during early voting
or on Election Day (i.e., after the 25-day registration cut-off) and
vote. N.C. Gen. Stat. § 163-82.6A(e).
165
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Plaintiffs argue that these other methods of registration are
not a substitute for SDR and its in-person effectiveness.
346 at 74-76.)
(Doc.
DMV only offers registration services to those
seeking DMV services, and it is true that the poor (which African
Americans represent disproportionately) are less likely to use DMV
services, as they are less likely to drive or own a vehicle.
Also,
because of a foul-up at DMV in implementing SL 2013-381, in
September 2014 some 2,726 seventeen-year-olds were denied the
right to register, and the SBOE had to send them a letter with a
voter registration form and the promise to file it for them if
completed and returned.
(Pl. Ex. 726.)
As for public assistance,
Plaintiffs argue that it, too, is an insufficient substitute for
the removal of SDR because it is only offered for those applying
for
such
services
and
that
public
assistance
declined from 41,162 in 2012 to 13,340 in 2014.
4.)
registrations
(Pl. Ex. 725 at
While Plaintiffs’ statistical evidence correlated African
Americans disproportionally with the purpose of such services,
suggesting it as an ideal registration opportunity, there was no
direct evidence as to why registrations at such services did not
occur more frequently.
As Defendants pointed out, the reduction
in use of these sources may very well be due, in some significant
measure, to the fact that voter registrations have been offered to
millions of Americans under the Affordable Care Act, passed in
2010.
166
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Aside from prior use data, Plaintiffs seek to use data from
the 2014 election to bolster their claim that African Americans
have been disparately impacted by the elimination of SDR.
In his 2015 report, based on data provided by the SBOE, Dr.
Stewart notes that in the 2014 midterm 12,983 people registered to
vote after the registration deadline but before Election Day. (Pl.
Ex. 242 at 163.) 105
Dr. Stewart did not know whether the dates
reported reflected when the registration applications were signed
or when the SBOE processed them.
(Doc. 332 at 122.)
He noted
that, overall, 273 people registered during the seven days of early
voting eliminated by SL 2013-381.
(Pl. Ex. 242 at 163.)
These
registrants were more likely to be white than African American.
(Id. at 164.)
He also noted that 11,993 people registered to vote
during the ten-day early-voting period.
(Id. at 163.)
However,
Dr. Stewart did not remove from this figure (or from any of the
above figures) those who registered at locations other than an
early-voting site, (Doc. 332 at 123), even though only those
registering at an early-voting site can use SDR.
Nor did Dr.
Stewart remove voters who were registering for a future election
(thus ineligible to vote in the upcoming election) because they
105
Among these registrants, 374 registered after the deadline but before
either the old or new early-voting period began. (Pl. Ex. 242 at 163.)
An additional 343 registered after early voting ended but before Election
Day arrived. (Id.) Such registrations would not have enabled a citizen
to vote before or after SL 2013-381 and are thus not relevant to the
analysis.
167
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had not resided in their precinct for more than thirty days.
See
N.C. Gen. Stat. § 163-55(a) (requiring that a voter have “resided
. . . in the precinct in which the person offers to vote for 30
days next preceding an election”). Therefore, Dr. Stewart’s figure
likely exceeds the number of potential same-day registrants from
2014, but the court has no way of knowing the extent.
Instead of providing the actual number of African American
and white registrants included in the 11,993 subtotal (surely a
knowable figure), Dr. Stewart provided a percentage (by race) of
all registrations during the two-year period preceding the 2014
election that occurred on the indicated day.
(Pl. Ex. 242 at 164.)
Thus, he found that the number of registrations during early voting
in 2014 was 1.415% of all registrations for the preceding two-year
period.
(Id. at 163.)
He then broke this figure down by race,
calculating that African American registrations during the 2014
early-voting period constituted 1.994% of the registrations for
the
two-year
period.
(Id.
registrations were 1.800%. 106
at
164.)
(Id.)
The
comparable
white
He noted the difference in
106
With these figures and others, Plaintiffs attempt to present the
percentages to say that African Americans were 11% more likely to
register during the early-voting period. However, as the Seventh Circuit
has earlier explained, such mathematical manipulations conceal the true
inquiry:
We have given the percentages of persons who have these
documents.
Plaintiffs express the figures differently,
giving the percentages of persons who lack the documents (2.4%
of whites, 4.5% of blacks, and 5.9% of Latinos), then dividing
168
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numbers by race - 0.194 percentage points - and concluded that
this
represented
a
disparity
showing
that
African
American
citizens were disparately impacted by the unavailability of SDR in
the 2014 general election.
He acknowledged, however, that the
disparity in this election was smaller than the disparity for
previous elections.
(Doc. 332 at 128.)
Defendants have offered a different characterization of the
2014 data.
Defendants would have the court first calculate the
actual number of African American and white registrations during
the 2014 early-voting period.
(Doc. 332 at 124-28.)
This yields
approximately 2,714 African American registrations and 7,507 white
registrations.
(Pl.
Ex.
242
at
163-64.)
Of
the
11,993
registrations during this period, the number of African American
registrations thus constituted 22.630%.
(Id.)
This compares to
the African American share of 22.5% of all voters registered as of
one percentage by another to yield an expression such as
“registered Black voters in Wisconsin were 70% more likely
than white voters to lack a driver's license or state ID.”
That is a misuse of data. Dividing one percentage by another
produces a number of little relevance to the problem.
If
99.9% of whites had photo IDs, and 99.7% of blacks did, the
same approach would yield the statement “blacks are three
times as likely as whites to lack qualifying ID” (0.3 ÷ 0.1
= 3), but such a statement would mask the fact that the
populations were effectively identical. That’s why we do not
divide percentages.
Frank v. Walker, 768 F.3d 744, 752 n.3 (7th Cir. 2014).
169
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2014. 107
(Def. Ex. 309 at 76.)
American
registrants
virtually
identical
during
to
the
Thus, the proportion of African
the
2014
early-voting
proportion
of
African
period
is
American
registered voters as of 2014.
Given the closeness of these percentages, and considering
that the data include people registering at sites other than those
offering early voting (and thus formerly offering SDR), these data
are at best weak evidence that the elimination of SDR caused
African
Americans
to
be
affected
disproportionately. 108
This
107
The proportion of the African American North Carolina citizen voting
age population (“CVAP”) in 2014 is not yet known. In 2013, however,
African American North Carolinians were 21.88% of the North Carolina
CVAP. (Def. Ex. 309 at 77.) This figure is also nearly identical to
the proportion of African American registrations (22.630%) during the
2014 early-voting period.
108
There is a further concern about the reliability of these figures.
The president of Plaintiff North Carolina Chapter of the NAACP, the
Reverend Dr. William Barber II, gave a speech in October 2014, just
before the general election, imploring audience members at the State
Chapter’s annual banquet to take people to the polls who were not
registered and demand they be given a provisional ballot:
Also, if people did not get registered we want you to take
them to the polls anyway.
Federal law requires that they
have to be given a provisional ballot. . . . If they didn’t
get registered and can’t register in early voting, we want
you to take them to the polls, we want them to get the
provisional ballot, we want them to be told the ballot would
not be counted because they — we do not have early voting and
same-day registration, and then we want you to get that name
so next year, when we’re in court, we can present a list of
names of people who have been denied their right to vote . . .
because of the denial of same-day registration and early
voting.
(Def. Ex. 67 at 37–38.) Dr. Barber testified at trial that he hoped
those at the banquet followed his instructions. (Doc. 329 at 123–24.)
Under federal and State law, voters who know they are not registered and
170
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conclusion is bolstered by the fact that the African American
advantage in registration rates grew from 2012 to 2014, and African
American turnout rates increased from 2010 to 2014, all while SDR
was eliminated.
Turning to “young” voters, Plaintiffs presented the testimony
of Dr. Levine, who relies in part on national studies of EDR and
SDR but also fails to distinguish between the two.
134.)
(Doc. 332 at
As noted above, the two mechanisms have entirely different
effects on political participation.
Thus, the national research
on which he relies is not sufficiently relevant to this case.
Dr. Levine also analyzed the use of SDR by young voters from
2008 to 2012.
He presented the following use statistics, which
are percentages of voters in a given election using SDR:
Older
Young
Total
using
2008
voters
5.23%
Voters
11.23%
voters 5.49%
SDR
(Pl. Ex. 50A at 11–12.) 109
2010
1.97%
9.21%
2.25%
2012
4.75%
12.47%
5.45%
As noted in the early-voting discussion
not eligible to vote are not entitled to a provisional ballot. See 52
U.S.C. § 21082(a); N.C. Gen. Stat. § 163-166.11. The NC NAACP later
issued a press release modifying the request to urge only those who
believe they are registered voters to request a ballot. (Def. Ex. 65
at 2.) In the end, this tactic may have increased the numbers of persons
who tried to register during early voting as well as those who demanded
provisional ballots and tried to vote OOP.
109 In raw numbers, around four to five times more “older voters” than
171
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above, youth turnout and registration rates increased from 2010 to
2014.
Dr. Levine did not produce any evidence of disparate impact
other than his prior use numbers and his inapposite national
studies.
Historically, the effect of a voting mechanism has been
measured commonly by turnout.
Prior to this case, Plaintiffs’
experts measured SDR’s effect that way.
They further acknowledge
that such analyses are possible here and would be probative.
(See
Def. Ex. 348 (Dr. Burden analyzing the effect of SDR on turnout);
Doc. 332 at 151–52 (Dr. Stewart conceding that he has not conducted
any statistical analysis on the effect of SDR on turnout or
registration rates); Doc. 342 at 129–30 (Dr. Stewart conceding
that
a
properly
conducted
cross-State
analysis
would
be
an
appropriate way to measure the effect of a voting law on turnout,
despite not having done so in this case); Doc. 331 at 88–90 (Dr.
Burden conceding that he had done no analysis to determine whether
competitiveness
of
2014
and
2008
general
elections
affected
turnout); id. at 96 (Dr. Burden conceding that, while he has
conducted “many national analyses” of the effect on turnout from
SDR and other election changes, he has never examined whether any
election law affected turnout in North Carolina).)
The failure of
“young voters” used SDR in each of these general elections.
50A at 11–12.)
(Pl. Ex.
172
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Plaintiffs’ experts to conduct the kind of analyses that were
possible, especially where it has been done in their scholarship
under more rigorous standards, (e.g., Doc. 331 at 148-49 (Dr.
Burden conceding that his North Carolina case study analysis in
this case was less rigorous than his academic work)), impairs the
persuasiveness
of
their
testimony.
See
Fed.
Rule
Evid.
702
advisory committee notes (counseling courts to be wary of an expert
who is not “as careful as he would be in his regular professional
work outside his paid litigation consulting”) (quoting Sheehan v.
Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir. 1997)); see
also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999) (“[The
Daubert gatekeeping requirement] is to make certain that an expert,
whether basing testimony upon professional studies or personal
experience, employs in the courtroom the same level of intellectual
rigor that characterizes the practice of an expert in the relevant
field.”).
There was only one reason given for Plaintiffs’ failure to
produce such highly probative evidence in this case.
On cross-
examination, Defendants had Dr. Stewart perform calculations from
the 2014 general election data, and the results tended to negate
an inference of disparity.
redirect,
Plaintiffs
asked
(E.g., Doc. 332 at 95-101.)
Dr.
Stewart
calculations changed his opinions.
whether
He said no.
any
of
On
these
When asked, “Why
not?” he responded, “Because my conclusions were based on comparing
173
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the use of these — the three techniques [early voting, SDR, and
OOP voting], [among] blacks and whites, and none of this changes
the fact that African-Americans utilized the changed procedures
more than whites did.”
In
support
of
(Doc. 332 at 152–53.)
their
claim
that
African
Americans
disproportionately need in-person assistance, Plaintiffs cited
statistics from the SBOE’s database of incomplete registration
applications.
For
those
individuals
who
submitted
voter
registration applications between 2012 and 2014, 21.25% (136,113)
were African American, while 65.12% (417,053) were white.
(Pl.
Ex. 242 at 163-64 (stating that the total number of registrations
across the two-year election cycle was 640,417).)
As of November
2014, 34.74% of the registration applications in the incomplete
queue were submitted by African Americans, while 51.53% were
submitted by white applicants.
(Pl. Ex. 633 at 5.)
In addition,
33.40% of applicants placed in the incomplete queue for failure to
check the citizenship box were African American, while 28.86% were
white.
(Id.)
Of those submitting applications without a birth
date, 59.05% were African American, while 22.28% were white. (Id.)
In
addition,
Plaintiffs
presented
evidence
that
African
Americans are more likely to move between counties than white
residents. (Pl. Ex. 42 at 30 n.37.)
Because North Carolina
organizes registration at the county level, more action is required
by those who move between counties.
For example, a voter who has
174
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moved within his county may update his registration information,
including a change of address, during early voting or on Election
Day, and vote.
5).
See N.C. Gen. Stat. § 163-82.6A(e); (Doc. 126-1 at
By contrast, individuals who move between counties more than
thirty days before Election Day must, in the absence of SDR, reregister in their new county prior to the twenty-five day cut-off
in order to be eligible to vote. (Doc. 354 at 97-98.)
Accordingly,
because they are more likely to move between counties, African
Americans are more likely to need to re-register.
In sum, Plaintiffs staked their case largely on aggregate
disproportionate SDR use over six years. 110
While in some cases
data on differential use are all that may be available, in this
case there have already been three elections without SDR.
Thus,
the prior differential in use is not the only, or most probative,
evidence.
As with the change in the early-voting schedule, the
2014 election turnout data casts doubt on Plaintiffs’ claims.
110
As a three-judge panel in a preclearance case, applying the VRA’s § 5
retrogression standard with the burden on the State, has explained,
[A] change is not retrogressive simply because it deals with
a method of voting or registration that minorities use more
frequently, or even because it renders that method marginally
more difficult or burdensome. Rather, to be retrogressive, a
ballot access change must be sufficiently burdensome that it
will likely cause some reasonable minority voters not to
register to vote, not to go to the polls, or not to be able
to cast an effective ballot once they get to the polls.
Florida v. United States, 885 F. Supp. 2d 299, 312 (D.D.C. 2012).
175
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While
effectively
relaxing
a
registration
deadline
may
make
registration marginally easier, there is simply no persuasive
evidence in this case that adding SDR caused an increase (that
would not have occurred otherwise) in turnout or registration rates
overall or for any subgroup, just as there is no evidence that
removing
SDR
decreased
turnout
or
registration
rates.
This
conclusion is supported by Plaintiffs’ own academic literature on
SDR.
Finally, the evidence does not support the conclusion that
African Americans, Hispanics, 111 or “young” voters were habituated
to using SDR during the three general elections it was available.
Plaintiffs did demonstrate, however, that African Americans are
more likely to move between counties, and thus more likely to need
to re-register, and that some small subset are more likely to end
up in the incomplete registration queue.
4.
Elimination of OOP Provisional Voting
From 2005 until 2013, OOP voting allowed a registered voter
on Election Day to vote in a precinct other than his assigned
precinct,
residence.
so
long
as
he
was
still
voting
in
his
county
of
OOP voting only applied to Election Day because early
111
Plaintiffs produced evidence that Hispanics disproportionately used
SDR, but the evidence presented was much more limited than that for
African Americans. Plaintiffs’ expert Allan Lichtman, Ph.D., testified
as to some disparate use numbers regarding Hispanics, (Doc. 333 at 118),
and included some use statistics in a rebuttal report, (Pl. Ex. 245 at
23).
He did not include any data from 2014.
(Id.)
By contrast,
Defendants provided evidence that Hispanic turnout increased from 2010
to 2014. (See, e.g., Def. Ex. 309 at 62–67, 76–77.)
176
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voting is offered at centralized sites and not at precincts.
In
that sense, early voting continues to permit OOP voting for the
ten days of early voting.
OOP voting required the poll worker to give the wrong-precinct
voter
a
provisional
ballot
to
cast.
However,
because
the
provisional ballot was for a different (wrong) precinct, it often
included races for which the voter was not eligible to vote and
omitted races for which he was.
This contrasts with voters during
early voting, where computer voting machines can be programmed to
produce the correct ballot even if the centralized location for
early voting is a different precinct.
Some Election Day precincts
do not use electronic voting machines, however.
Consequently,
after the OOP ballot was cast, the CBOE had to individually review
the full ballot to tabulate and record the races for which the
voter was eligible to vote and invalidate votes cast in the races
for which the voter was not eligible, or the CBOE had to transcribe
the appropriate eligible votes onto a separate, proper ballot,
which would then be recorded.
State-wide
races,
OOP
Therefore, except for national and
voters
disenfranchised for some races.
were
often
effectively
In this regard, to the extent OOP
voting included voters who failed to vote in their proper precinct
merely by neglect or ignorance (and there was evidence of this at
trial), and not due to need, it can be criticized as having
encouraged voters to unwittingly forego their full voting rights.
177
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Some form of OOP voting is permitted in sixteen States plus
the District of Columbia.
is
among
thirty
other
(Def. Ex. 270 at 18.)
States,
including
North Carolina
many
jurisdictions
previously covered by VRA § 5, that prohibit the practice removed
by SL 2013-381. 112
(Def. Ex. 270 at 18.)
Two more States, New
York and Missouri, count OOP ballots only if cast in the correct
polling place (the rare occurrence where more than one precinct
uses
the
same
polling
place).
(Id.
at
18.)
Two
others,
Connecticut and Massachusetts, will count OOP ballots if cast in
the correct town or city, which frequently is one and the same.
(Id.)
Even among States that permit OOP voting, there are various
limitations. For example, Louisiana counts votes cast in the wrong
precinct, but only for federal races.
(Id. at 18.)
The history of North Carolina’s use of OOP voting is measured
by the casting of provisional ballots that the SBOE labels as
“incorrect precinct.”
(See, e.g., Pl. Ex. 689.)
The counting of
OOP provisional ballots began in 2006 and continued for three more
general elections, until it was ended by SL 2013-381.
Recognizing
112
At trial Mr. Trende testified that Utah does not permit OOP voting.
However, it appears that Utah will count ballots cast in the wrong
precinct so long as they are cast in the correct county. Utah Code Ann.
§ 20A-4-107(1)(b)(iii), (2)(c); (Def. Ex. 2 (Trende’s initial report:
coding Utah as offering OOP)).
However, it went undisputed at trial
that the majority of States, many of which were previously covered by
§ 5, do not offer OOP. See, e.g., Ala. Code §§ 17-9-10, 17-10-2(b)(2);
Fla. Stat. Ann. § 101.048(2)(b); Miss. Code Ann. § 23-15-571(3)(a), (d);
S.C. Code Ann. § 7-13-830; S.D. Codified Laws § 12-20-5.1; Tex. Elec.
Code Ann. § 63.011(a); Va. Code Ann. § 24.2-653(B).
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that every vote is important, it is nevertheless true that even
for the years it was in place, OOP ballots constituted only a
fraction of a sliver of the total ballots cast.
In 2012, when
there were more OOP provisional ballots at least partially counted
than ever, the total provisional incorrect precinct ballots as a
percent of all ballots cast amounted to only .19% of white ballots
and .33% of African American ballots. 113
14) 114; Pl. Ex. 242 at 161 (App’x U).)
(Pl. Ex. 42 at 98 (tbl.
Put another way, 99.67% of
African American voters and 99.81% of white voters were able to
cast ballots other than by OOP.
share
of
the
disproportionately
electorate,
more
Nevertheless, compared to their
African
likely
than
American
whites
to
voters
cast
an
provisional ballot in the elections prior to SL 2013-381.
were
OOP
(Pl.
Ex. 42 (Ex. 49); id. at 98 (tbl. 14).)
In 2014, after SL 2013-381, North Carolina stopped counting
“incorrect precinct” provisional ballots, though it continued to
offer provisional ballots to registered voters, as required by
HAVA.
In the 2014 general election, the number of “incorrect
113
For every year that OOP voting was permitted, white registered voters
cast more incorrect precinct ballots than African American voters. (Pl.
Ex. 42 (Ex. 49).) As with earlier analyses, the court does not consider
this fact.
114
Because Plaintiffs’ data on the number of OOP provisional ballots
cast excluded 35.4% of the records in the provisional ballot file (the
race of the voter was not indicated), the court followed Plaintiffs’
instruction and multiplied each number in Table 14 by 1.55%. (Pl. Ex.
42 at 98 n.126 (“[T]he proper correction to apply is to multiply each
number by 1/.646, or 1.55.”).)
179
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precinct” provisional ballots cast on Election Day dropped to
1,930.
(Pl. Ex. 689.)
For whatever reason, many of these were
counted in whole or in part, leaving only 1,387 not counted.
(Id.)
Of these, 576 were cast by African American voters and 595 were
cast by white voters.
(Id.)
Accordingly, African American voters
disproportionately cast provisional ballots in the wrong precinct
in 2014.
Plaintiffs and Defendants dispute the reason why the number
of OOP provisional ballots dropped in 2014.
Plaintiffs claim that
voters were deterred, while Defendants claim the results show that
former OOP voters were able to adjust to voting in their correct
precincts.
The explanations are not mutually exclusive, but
Defendants’ explanation is better supported by the evidence.
In
fact, Plaintiffs’ own evidence indicates that the drop in OOP
provisional ballots observed in 2014 was likely due in large part
to
voters
going
to
their
elimination of OOP voting.
testimony
of
Susan
correct
precinct
in
light
of
the
For example, Plaintiffs presented the
Schaffer
to
support
their
assertion
that
requiring people to vote in the correct precinct results in a
significant number of people being deterred from voting.
796.)
(Pl. Ex.
In 2014, Ms. Schaffer, who had moved to North Carolina from
New Jersey in 2011, served as a poll observer for the advocacy
group Democracy North Carolina during the general election on
Election Day. (Id. at 12–15.) Democracy North Carolina was trying
180
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to measure the impact of SL 2013-381 on the 2014 election.
at 16.)
(Id.
Ms. Schaffer began collecting the names of those who
presented but left the precinct because they were assigned to vote
in another precinct and reported fifty-nine persons.
21.)
(Id. at 17–
Poll workers had advised these individuals of the location
of their assigned precinct.
(Id. at 20–21.)
Plaintiffs argued
that this evidenced the burden of eliminating OOP voting.
At trial, however, Defendants presented persuasive evidence
as to what happened to these voters.
Of the fifty-nine people on
Ms. Schaffer’s original list, only fifty-two could be identified
as registered in North Carolina’s voter database. 115
at 1.)
(Def. Ex. 343
Of these fifty-two voters, forty-nine did ultimately vote
on Election Day.
(Id.)
That is, 94.2% of identified registered
voters were able to travel from the wrong precinct to their
assigned one on Election Day.
There were three voters on Ms.
Schaffer’s list who did not vote in 2014.
apparently a married couple.
(Id. at 140–43.)
they never successfully voted.
man.
Two were white,
It is unknown why
The third was an African American
Based on his November 4, 2014 registration date (Election
Day), it does not appear that he would have been eligible to vote
in any precinct on Election Day, whether before or after SL 2013-
115 To the extent that the seven
because they were not registered,
they were Election Day voters, and
Day in North Carolina (that would
individuals could not be identified
SDR could not have saved them because
SDR has never been offered on Election
make it EDR).
181
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381.
(Id. at 132–34.)
This sampling of “affected voters” offered by Plaintiffs’ own
witness supports the court’s conclusion that the number of wrongprecinct provisional ballots fell substantially in 2014 because of
the ability of wrong-precinct voters to actually go to their
correct precinct.
As with the data relating to other voting procedures, the
provisional ballot data leaves many questions unanswered.
The
court could assume that the lack of OOP voting in 2014 disparately
affected African American voters because they previously used OOP
voting
disproportionately.
Defendants,
however,
have
offered
evidence to suggest that this may not be the case and that the
provisional ballot data are missing context.
For example, Dr.
Thornton found that, among all OOP voters, 45% had voted in the
correct precinct in the past.
(Def. Ex. 309 at 89.)
African
Americans were even more likely, at 49%, to have voted at their
assigned precinct in the past.
(Id.)
And, looking only at the
2014 general election, overall and among African American OOP
voters, 74% had voted at their correct precinct in the past.
(Id.)
Further, the provisional data does not explain why any voter voted
out of his or her precinct.
Plaintiffs assert they did so because
of need, but this conclusion is undermined by the fact that so few
used the option in relation to the vastly larger number of poor,
less educated, and vehicle-less voters.
Nor does the use data
182
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tell us whether any voter could have easily voted in his or her
correct precinct.
Thomas Hofeller, Ph.D., an expert who studies mapping for
redistricting, 116 observed the data for OOP voters and measured the
distance between each OOP voter’s correct precinct and the precinct
at which he or she actually voted.
He found that, in 2012, 60.3%
of African American OOP voters voted at a precinct within five
miles of their assigned precinct.
(Def. Ex. 212A at 18.)
That
same year, only 49.1% of white voters cast an OOP ballot within
five miles of their assigned precinct.
(Id.)
However, this data
is of marginal value, as it does not address the distance from the
voter’s home or work.
Finally, Plaintiffs offered the testimony of voters, African
American and white, who expressed frustration that they had cast
an OOP provisional ballot in 2014 that was not counted.
However,
the vast majority had made no effort whatsoever to determine the
location of their assigned precinct.
(E.g., Doc. 330 at 40
(William Kittrell, college student: “I figured since I was a
resident of North Carolina and I had registered to vote in North
Carolina, that I would be able to vote in any county that I was
in.”); id. at 175-76 (Terrilin Cunningham: assumed she could vote
116
Dr. Hofeller was proffered without objection “as an expert in
demography, census geography, and database building involving voter
registration and turnout information, voting and registration patterns
and also the same patterns based upon race and partisan affiliation.”
(Doc. 340 at 140.)
183
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anywhere in the county because in a previous county “I just voted
down the street from our church, which we didn’t live anywhere
near”); Doc. 334 at 154-57 (Michael Owens: elected not to vote
early but tried to vote OOP on Election Day at the precinct where
he had previously voted and was unaware he must vote in his home
precinct).
Only Timothy and Yvonne Washington, a married couple,
were unable to walk to their assigned precinct, which was farther
away, due to disabilities.
(See Pl. Ex. 679; Pl. Ex. 797); see
also infra Part II.A.3.d.
Thus, it is far from clear, indeed
doubtful, whether the elimination of OOP voting was the cause of
most voters’ failure to successfully cast a ballot.
In
sum,
Plaintiffs
have
shown
that
African
Americans
disproportionately cast OOP provisional ballots both before and
after SL 2013-381. 117
reason
for
the
There are substantial questions about the
disparate
use,
which
will
be
addressed
more
thoroughly infra.
5.
Elimination of Pre-Registration
Pre-registration permitted those under the age of eighteen to
117
Hispanics were also more likely to cast OOP provisional ballots prior
to SL 2013-381. (Pl. Ex. 245 at 24). The OOP provisional use data for
Hispanics did not cover 2014. (See id.) In the 2008, 2010, and 2012
general elections combined, young voters cast 919,246 total ballots, of
which 3,221 (0.35%) were OOP ballots. (See Pl. Ex. 236 at 30–32, 35–
38.)
By comparison, older voters cast 10,651,288 ballots in those
elections, of which 14,697 (0.138%) were OOP ballots. (See id.) In the
2014 general election, after SL 2013-381, young voters cast 102,775
votes, of which 196 (0.191%) were OOP ballots. (See id.) Older voters
cast 2,737,540 votes in that election, of which 1,459 (0.053%) were OOP
ballots. (See id.)
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register earlier than would otherwise be permitted.
Currently,
seventeen-year-olds who will be eighteen by the time of the general
election are able to register sixty days prior to the accompanying
primary.
N.C. Gen. Stat. § 163-59.
elimination
of
pre-registration
Plaintiffs argue that the
disparately
impacts
African
American and Hispanic youth and imposes a severe burden on all
youth.
Eight
States
and
the
District
of
Columbia
registration by those age sixteen or older.
Doc. 340 at 18.)
allow
pre-
(Def. Ex. 270 at 32;
North Dakota is included as offering pre-
registration because it has no registration system at all.
(Def.
Ex. 270 at 32.)
North Carolina’s pre-registration law was in place for only
two general elections, 2010 and 2012, before it was repealed by SL
2013-381.
(Pl. Ex. 235 at 18.)
When available, about 152,000
adolescents pre-registered, (id. at 13), although it is unknown,
of course, how many of these adolescents would have eventually
registered
without
pre-registration.
registration
did
not
clearly
Republicans.
(Id. at 14.)
When
benefit
in
either
place,
pre-
Democrats
or
In some years, Republicans had more
pre-registrants than Democrats, and in other years the reverse was
true.
(Id.)
In all years, however, the number of unaffiliated
pre-registrants was greatest.
(Id.)
In 2010, 23% of those who
pre-registered were African American, and in 2012, 30% were African
185
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American.
(Id.
at
16.)
Thus,
disproportionately pre-registered.
overall,
African
Americans
Hispanics, by contrast, were
3.8% of pre-registered voters, which is less than their proportion
in the population.
One
of
(Pl. Ex. 245 at 23.)
Plaintiffs’
experts,
Sunshine
Hillygus,
Ph.D.,
Professor of Political Science at Duke University, 118 studied the
effect of pre-registration on young voter patterns nationally as
well as the use of pre-registration in Florida. 119
Based on a
difference-in-difference model 120 using responses from the CPS, she
found that States with pre-registration experienced a 13% increase
in youth turnout.
(Pl. Ex. 235 at 20.)
A lagged model 121 of the
same data showed a 2% increase in youth turnout.
(Id. at 21.)
In
addition to her difference-in-difference model, 122 Dr. Hillygus
118
Dr. Hillygus was proffered without objection as an expert in American
political behavior, including political behavior in connection with
preregistration laws and survey methods. (Doc. 331 at 188.)
119
Yet another example of Plaintiffs’ experts relying on practices of
other States to opine on effects in North Carolina.
120
A difference-in-difference model attempts to control for (hold
constant) potential confounders that vary between States across time and
across elections. (Doc. 331 at 192-93.)
121
A lagged model attempts to determine a lower bound and provide a more
conservative estimate using stricter assumptions; Dr. Hillygus deemed
it appropriate if one were to assume that States with already high youth
voter turnout were more likely to adopt pre-registration laws. (Doc.
331 at 195.)
122
Because Dr. Hillygus’s difference-in-difference model depends upon
CPS data, it is at least in part vulnerable to the over-reporting
problems that are well established to exist within the CPS survey. (Doc.
331 at 135-36.) However, this concern is ameliorated by Dr. Hillygus’s
186
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examined the effect of pre-registration in Florida by comparing
the voting patterns of “those marginally eligible to vote in the
2008 election (17 turning 18 by November 4, 2008) and those
marginally ineligible” (17 not turning 18 by November 4, 2008).
(Id. at 22.)
The key difference between these two groups was that
those who were marginally ineligible only had the opportunity to
pre-register in the lead up to the 2008 election, while those who
were
marginally
eligible
traditionally and vote. 123
had
(Id.)
the
opportunity
to
register
She found that those who had the
opportunity to pre-register were 8% more likely to vote in 2012
than those who had the opportunity to register traditionally. (Id.
at 22-23.)
Based on these studies of areas outside of North
Carolina, she concluded that pre-registration helps increase young
voter turnout.
(Id. at 25.)
Extrapolating her difference-in-
difference
lagged
to
and
models
North
Carolina,
she
further
projected that the removal of pre-registration would result in
Florida study, which was based upon voter files and is consistent with
the results of the difference-in-difference model. (Pl. Ex. 235 at 23.)
123
By saying an individual had the “opportunity to pre-register,” Dr.
Hillygus appears to mean that, due to the individual’s birthday, preregistration was the only available means of registration for that
individual leading up the 2008 presidential election. (Pl. Ex. 235 at
22.) For example, Dr. Hillygus includes within the “opportunity to preregister” group individuals who were eligible to pre-register during the
2008 election but “waited until they were older to register
traditionally,” and includes within the “opportunity to register
traditionally” group those who “pre-registered when they were younger,
outside the context of a presidential election.”
(Id.)
She used a
“fuzzy regression discontinuity approach” to account for this factor
(Id.)
187
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8,000 to 50,000 fewer young voters in North Carolina in 2016.
at
28.)
She
did
not,
however,
find
that
(Id.
pre-registration
disproportionately benefits any particular race.
Instead, she
found that it is “equally effective for various demographic groups,
including whites versus minorities.”
(Id. at 24.)
At trial, Plaintiffs featured Nadia Cohen, who could have
pre-registered but was unable to do so because of SL 2013-381.
Even without pre-registration, Ms. Cohen could have registered
long before the 2014 general election, given that she turned
eighteen before that election.
She did not register for the 2014
general election because no one told her to do so and because, in
her words, “honestly, voting is not my top priority throughout the
year.”
(Doc. 331 at 173.)
At the time of trial she was enrolled
to start college at the University of North Carolina at Chapel
Hill in the fall of 2015.
The elimination of pre-registration did
not cause Ms. Cohen to be unable to vote in 2014.
In
addition,
Plaintiffs
presented
the
testimony
of
individuals involved in assisting persons to register to vote.
For
example,
Reverend
Hispanic-American
Maria
member
of
Palmer,
“Hotties,”
mentioned
–
short
Outreach Team” — which assists Hispanics in voting.
145.)
above,
for
is
an
“Hispanic
(Doc. 329 at
She testified that the elimination of pre-registration was
“big” because it affected Latino youth, who are often a family’s
first-generation voter (presumably because they are the first
188
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generation eligible to vote) and “not familiar with how things are
done.”
(Doc. 329 at 148.)
There is no evidence that a voter can be habituated to preregistration, since it is usually a one-time event.
Moreover,
because a segment of pre-registrants are mobile, they have an
increased
likelihood
of
facing
an
registering upon turning eighteen.
additional
barrier
of
re-
That is either because the
pre-registrant and his family change addresses between the time of
pre-registration and age of majority (in which case he fails
statutory mail verification, which is not initiated until the preregistrant is eligible to vote) or because the pre-registrant
subsequently moves out of the county (e.g., by going to college).
In either case, the pre-registrant who moves will need to reregister in his new county of residence.
In sum, the evidence shows that pre-registration increases
youth turnout.
registration
However, although African Americans used pre-
disproportionately
compared
to
whites
in
North
Carolina, the evidence also establishes that pre-registration does
not disproportionately benefit one race over the other.
235 at 24.)
(Pl. Ex.
In addition, while the evidence explains why pre-
registration increases turnout, it does not explain why African
Americans are more likely to pre-register or why the other means
of registration are less available to African Americans than other
groups.
As
noted
below,
North
Carolina
continues
to
offer
189
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substantial opportunity for seventeen-year-olds to register ahead
of any election for which they are eligible, including primaries
when they are age seventeen.
6.
In
Other Challenged Provisions
addition
to
these
four
mechanisms,
Plaintiffs
also
challenge SL 2013-381’s expansion of poll observers and ballot
challenges,
Election
as
Day
well
poll
as
the
hours
transfer
from
CBOEs
of
discretion
to
extend
to
the
as
either
SBOE,
disproportionately impacting minorities or imposing an otherwise
unjustified burden on the right to vote.
North Carolina law permits the chair of each political party
in every county to “designate two observers to attend each voting
place at each primary and election.”
N.C. Gen. Stat. § 163-45(a).
SL 2013-381 allows the chair of each county party to “designate 10
additional at-large observers who are residents of that county who
may attend any voting place in that county.”
2013 N.C. Sess. Law
381, § 11.1 (codified at N.C. Gen. Stat. § 163-45(a)).
“Not more
than two observers from the same political party shall be permitted
in the voting enclosure at any time, except that in addition one
of the at-large observers from each party may also be in the voting
enclosure.”
Id.
The list of at-large observers must be “provided
by the county director of elections to the chief judge [for each
affected
precinct].”
Id.
(codified
at
§
163-45(b)).
In
conjunction with the addition of at-large observers, the law now
190
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permits any registered voter in the county, rather than in the
precinct, to exercise the right to challenge a ballot on Election
Day.
Id. § 20.2 (codified at N.C. Gen. Stat. § 163-87).
During
early voting, any resident of the State may now file a challenge.
Id. § 20.1 (codified at N.C. Gen. Stat. § 163-84).
Little, if
anything, was said about the justification for these procedures
during the legislative process.
(See Pl. Ex. 202; Pl. Ex. 549;
Pl. Ex. 550.)
Under North Carolina law, the polls on Election Day are to
remain open from 6:30 a.m. until 7:30 p.m.
166.01.
N.C. Gen. Stat. § 163-
Beginning in 2001, each CBOE had the power to “direct
that the polls remain open until 8:30 p.m.” in “extraordinary
circumstances.”
Gen.
Stat.
discretion
§
of
2001 N.C. Sess. Law 460, § 3 (codified at N.C.
163-166
the
circumstances” clause.
(2002)).
CBOEs
by
SL
2013-381
deleting
eliminates
the
the
“extraordinary
2013 N.C. Sess. Law 381, § 33.1.
The law
now provides:
If the polls are delayed in opening for more than 15
minutes, or are interrupted for more than 15 minutes
after opening, the [SBOE] may extend the closing time by
an equal number of minutes. As authorized by law, the
[SBOE] shall be available either in person or by
teleconference on the day of election to approve any
such extension.
N.C. Gen. Stat. § 163-166.01.
The law thus vests discretion in
the SBOE to the exclusion of CBOEs and conditions the exercise of
discretion on a delay of fifteen minutes or longer.
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Virtually no evidence was offered at trial by either side as
to these challenged provisions.
At the preliminary injunction
hearing, Plaintiffs offered limited testimony about a concern that
additional observers might be a basis for intimidation.
For
example, Senator Dan Blue testified about a concern that African
American voters may be intimidated by the presence of a white
observer who does not look familiar to them and that bringing in
people
from
environment.
outside
the
precinct
(Doc. 164 at 109-11.)
may
create
an
intimidating
But as he stated, individuals
have a First Amendment right to stand outside the polling place,
and SL 2013-381 does not address this.
(Id. at 108.)
Moreover,
the intimidation he was most concerned with, he said, occurs
outside the polling place, not inside the restricted area where
observers from both parties would be present and limited under SL
2013-381.
(Id. at 136-37.)
Defendants did not present evidence as to the justification
for poll observers and challengers, 124 and the need is not readily
apparent.
By the same token, however, Plaintiffs have not offered
any persuasive evidence that SL 2013-381 renders any intimidation
124
Plaintiffs criticize proponents of SL 2013-381 for not testifying at
all at trial and invite the court to take note of their absence. However,
members of the General Assembly enjoy a qualified legislative privilege.
The parties engaged in significant proceedings during this litigation
over the scope of that privilege, and the court allowed certain discovery
to take place.
(Doc. 93.)
The court will note any absence of
justification when the legislation was debated and passed, but it will
not infer improper motive merely from legislators’ legitimate reliance
on privilege.
192
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likely.
Plaintiffs apparently assume that white poll observers
would be placed in African American precincts; but there was no
indication that would be so.
The law requires that “[a]n observer
shall do no electioneering at the voting place, and shall in no
manner impede the voting process or interfere or communicate with
or observe any voter in casting a ballot,” unless the chief judge
of elections permits the observer to make observations and take
notes.
N.C. Gen. Stat. § 163-45(c).
Plaintiffs have provided no
evidence that any poll observer or any challenger has abused his
or her statutory power during the several elections held under SL
2013-381, nor have they forecast any evidence that such is likely
in the future.
Of course, if any problem ever develops, the
participants would be subject to appropriate legal action.
With respect to the discretion to extend polling hours,
Plaintiffs
have
not
demonstrated
how
the
elimination
of
the
“extraordinary circumstances” clause will cause any burden or
lessened opportunity based on race or age.
This is especially
true because, as former SBOE Director Gary Bartlett testified at
the preliminary injunction hearing, the SBOE retains the ability
to make up significant losses in time by ordering the polls to
remain open for equal time in the event of a delay. 125
N.C. Gen.
125
According to former Director Bartlett, this SBOE discretion to keep
the polls open satisfied the concern he had about the removal of
discretion from CBOEs. (Doc. 160-3 at 151.)
193
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Stat. § 163-166.01.
The law also protects any voter in line to
vote at the time the polls close.
Id.
On these provisions,
therefore, Plaintiffs have not demonstrated any burden on any voter
or any disproportionate impact on minorities.
7.
The
2014 Data
data
from
the
2014
elections
Plaintiffs’ claims in these cases.
seriously
undermine
Plaintiffs argue that such
data are little or no evidence of the actual effect of eliminating
the voting procedures at issue.
persuasive.
Their arguments are simply not
Data from actual implementation of an election law
are precisely the sort of electoral information that courts are
encouraged to consider, because they permit an understanding of
the effect of the law based on “historical facts rather than
speculation.”
Purcell v. Gonzalez, 549 U.S. 1, 6 (2006) (Stevens,
J., concurring).
Plaintiffs
argue
that
the
court
cannot
merely
compare
“aggregate turnout numbers” from 2014 to 2010 to determine the
effects of SL 2013-381.
(Doc. 346 at 104.)
True.
But Defendants
have not asked the court to take such a myopic view, and this court
is examining so much more information to reach its conclusions.
Next, Plaintiffs argue that the 2014 election data were
affected by a number of different factors besides SL 2013-381.
First, they argue that 2014 involved a very competitive $110
million
North
Carolina
Senate
race,
representing
the
highest
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spending of its type in the history of the Nation.
05.)
of
This too is true.
Plaintiffs’
(Id. at 104–
Oddly, it came to light at trial that one
experts,
Morgan
Kousser,
Ph.D.,
a
California
resident, contributed to this anomaly by making a personal campaign
contribution
to
the
incumbent
Democratic
Senator
for
North
Carolina in 2014 even though he was supposedly a neutral expert in
this case.
(Doc. 330 at 85–86.)
Dr. Kousser is free to express
his political views, but doing so while claiming to be an unbiased
expert affects his credibility.
More importantly, if Plaintiffs
believed that the competitiveness of that campaign distorted the
turnout numbers, they could have had their experts demonstrate
this quantitatively.
Plaintiffs’ experts have done this type of
analysis in the past, yet no effort was made to do so here.
Def. Ex. 348; Doc. 342 at 129–30; Doc. 331 at 88–90.)
(See
In addition,
as noted, Plaintiffs’ attempt to rely on an extraordinary Senate
campaign to downplay high turnout in 2014 is contradicted by their
attempt
to
ignore
the
unique
nature
of
the
2008
and
2012
presidential elections (whose results benefit them).
Second, Plaintiffs argue that the contest for the seat of
Congressional District 12, which had been held by Congressman
Melvin Watt (an African American) skewed the turnout statistics.
But
in
the
general
election,
this
race
could
not
be
deemed
competitive in any sense of the word, with the Democratic candidate
taking over 75% of the vote.
(See Def. Ex. 364 at 4.)
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Third, Plaintiffs point to their own “engagement efforts” and
African American “anger about the enactment of HB 589” to increase
turnout as skewing the 2014 numbers.
(Doc. 346 at 105.)
Again,
no actual evidence of the effect of the purported skewing was
offered, even though Plaintiffs’ experts purport to measure those
kinds of things quantitatively.
Moreover, if “engaging” “angry”
voters meaningfully moves turnout, then turnout is more likely a
function
of
motivation
than
the
availability
of
the
voting
mechanisms at issue here.
Finally, Plaintiffs argue that, if 2014 turnout data has any
relevance, “the relevant comparison is between actual 2014 turnout
and what turnout in 2014 would have been had HB 589 not been in
effect.”
(Id. at 106.)
This would be most probative.
But
Plaintiffs then fault Defendants’ expert, Dr. Thornton, for not
having performed such an analysis.
(Id.)
This would be more
persuasive if this were a VRA § 5 case where Defendants bore the
burden of proof, but it is not.
Plaintiffs bear the burden in
this trial.
In the end, Plaintiffs rely on aggregate turnout data when it
is expedient, but eschew it when it is not.
Plaintiffs are correct
that the 2014 turnout data are not dispositive.
But, as the
Supreme Court has recognized, it is highly probative, and the court
considers it along with all the other data offered into evidence
in assessing the totality of the circumstances.
196
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E.
Testimony of Other Experts
Plaintiffs introduced the testimony of various other experts
who discussed the history of official discrimination in North
Carolina
and
various
socioeconomic
disparities.
The
court’s
findings as to their opinions and conclusions will be discussed
infra where appropriate.
II.
CONCLUSIONS OF LAW
A.
Section 2 of the VRA
1.
The Law of Vote Denial and Abridgement Claims
The right to vote is fundamental and preservative of all
others.
League, 769 F.3d at 229.
Section 2 of the VRA prohibits
any “voting qualification or prerequisite to voting or standard,
practice, or procedure” that “results in a denial or abridgement
of the right of any citizen of the United States to vote on account
of race or color.”
52 U.S.C. § 10301(a).
A violation of § 2
is
established
if,
based
on
the
totality
of
circumstances, it is shown that the political processes
leading to nomination or election in the State or
political
subdivision
are
not
equally
open
to
participation by members of a class of citizens
protected by subsection (a) in that its members have
less opportunity than other members of the electorate to
participate in the political process and to elect
representatives of their choice.
The extent to which
members of a protected class have been elected to office
in
the
State
or
political
subdivision
is
one
circumstance which may be considered: Provided, That
nothing in this section establishes a right to have
members of a protected class elected in numbers equal to
their proportion in the population.
Id. § 10301(b).
Although the Supreme Court held in 1980 that a
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§ 2 plaintiff had to show discriminatory intent, City of Mobile v.
Bolden, 446 U.S. 55 (1980), Congress amended the VRA in 1982 such
that a § 2 plaintiff need only show that a particular voting
practice produces a discriminatory result.
52 U.S.C. § 10301
(formerly 42 U.S.C. § 1973(a)); see Thornburg v. Gingles, 478 U.S.
30, 35 (1986) (“Congress substantially revised § 2 to make clear
that a violation could be proved by showing discriminatory effect
alone and to establish as the relevant legal standard the ‘results
test,’ applied by this Court in White v. Regester, 412 U.S. 755
(1973), and by other federal courts before Bolden.”)
“The essence of a § 2 claim is that a certain electoral law,
practice,
or
structure
interacts
with
social
and
historical
conditions to cause an inequality in the opportunities enjoyed by
black and white voters to elect their preferred representatives.”
Gingles, 478 U.S. at 47.
Section 2 encompasses claims of vote
dilution, as well as vote denial or abridgment.
§ 10301(a).
dilutes
the
See 52 U.S.C.
Vote dilution refers to a governmental practice that
voting
strength
of
minorities
in
various
ways,
including, for example, “the dispersal of blacks into districts in
which they constitute an ineffective minority of voters or from
the concentration of blacks into districts where they constitute
an excessive majority.”
Gingles, 478 at 46 n.11.
The bulk of the
§ 2 case law involves vote dilution claims.
This case, however, involves a vote denial/abridgement claim,
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for which there is less developed law under § 2.
See Simmons v.
Galvin, 575 F.3d 24, 28 n.2, 41-42 (1st Cir. 2009).
This is likely
because,
historically,
many
election
changes
in
covered
jurisdictions like North Carolina had to obtain preclearance under
§ 5 of the VRA – under which the State bore the burden of proving
non-retrogression — rendering any § 2 claim either moot or perhaps
less attractive.
It may also be because, to date, the Supreme
Court has yet to entertain a § 2 vote denial case.
See Nicholas
O. Stephanopoulos, The South After Shelby County, 2013 Sup. Ct.
Rev. 55, 106–07 (2013).
In Plaintiffs’ appeal of the preliminary injunction decision
in this case, the Fourth Circuit articulated the § 2 inquiry as
follows:
First, the challenged standard, practice, or
procedure must impose a discriminatory burden on members
of a protected class, meaning that members of the
protected class have less opportunity than other members
of the electorate to participate in the political
process and to elect representatives of their choice.
Second, that burden must in part be caused by or
linked to social and historical conditions that have or
currently produce discrimination against members of the
protected class.
League, 769 F.3d at 240 (citations and internal quotation marks
omitted). 126
In assessing these two elements, the court considers
126
In stating this test, the Fourth Circuit agreed with the Sixth
Circuit’s opinion in Ohio State Conference of NAACP v. Husted, 768 F.3d
524, 554 (6th Cir. 2014). On the same day the Fourth Circuit issued its
decision, however, the Sixth Circuit vacated its opinion after the
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“the totality of circumstances.”
Id.
The factors typically
relevant to the circumstances in a § 2 case are those adopted by
the Supreme Court in Gingles from a Senate Report on the 1982
amendment to the VRA, which are:
1.
“the
extent
of
any
history
of
official
discrimination
in
the
state
or
political
subdivision that touched the right of the members
of the minority group to register, to vote, or
otherwise
to
participate
in
the
democratic
process”;
2.
“the extent to which voting in the elections of the
state
or
political
subdivision
is
racially
polarized”;
3.
“the extent to which the state or political
subdivision has used unusually large election
districts, majority vote requirements, anti-single
shot provisions, or other voting practices or
procedures that may enhance the opportunity for
discrimination against the minority group”;
4.
“if there is a candidate slating process, whether
the members of the minority group have been denied
access to that process”;
5.
“the extent to which members of the minority group
in the state or political subdivision bear the
effects of discrimination in such areas as
education, employment and health, which hinder
their ability to participate effectively in the
political process”;
Supreme Court stayed its implementation. No. 14-3877, 2014 WL 10384647,
at *1 (6th Cir. Oct. 1, 2014).
Thereafter, the Fifth Circuit also
adopted the same test. Veasey v. Abbott, 796 F.3d 487, 504 (5th Cir.
2015), rehearing en banc granted, No. 14-41127, 2016 WL 929405 (5th Cir.
March 9, 2016). The Seventh Circuit considered the test but cast doubt
on it. Frank v. Walker, 768 F.3d 744, 754–55 (7th Cir. 2014) (“We are
skeptical about the second of these steps, because it does not
distinguish discrimination by the defendants from other persons’
discrimination. . . . But if we were to adopt this approach for the
sake of argument, our plaintiffs would fail at the first step . . . .”).
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6.
“whether
political
campaigns
have
been
characterized by overt or subtle racial appeals”;
7.
“the extent to which members of the minority group
have been elected to public office in the
jurisdiction”;
8.
“whether
there
is
a
significant
lack
of
responsiveness on the part of elected officials to
the particularized needs of the members of the
minority group”; and
9.
“whether the policy underlying the state or
political
subdivision’s
use
of
such
voting
qualification, prerequisite to voting, or standard,
practice or procedure is tenuous.”
Gingles, 478 U.S. at 36-37 (quoting S. Rep. No. 97-417, at 28–29
(1982), reprinted in 1982 U.S.C.C.A.N. 177, 206–07 (hereinafter,
“Senate Report”)).
These factors are drawn from the vote dilution context, where
they have more obvious application.
n.4, 45.
See Gingles, 478 U.S. at 36
In both the vote dilution and vote denial context, “there
is no requirement that any particular number of factors be proved,
or [even] that a majority of them point one way or the other.”
League, 769 F.3d at 240 (quoting Gingles, 478 U.S. at 45)).
“[T]his list of typical factors is neither comprehensive nor
exclusive.
While the enumerated factors will often be pertinent
to certain types of § 2 violations, particularly to vote dilution
claims, other factors may also be relevant and may be considered.”
Gingles, 478 U.S. at 45 (footnote omitted).
For example, in the
interlocutory appeal of the denial of the preliminary injunction
201
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in this case, the Fourth Circuit stated that the “success[]” of
North
Carolina’s
“previous
voting
practices”
in
“fostering
minority participation” is “centrally relevant” under § 2, being
a “critical piece of the totality-of-the-circumstances analysis
[§] 2 requires.”
League, 769 F.3d at 242.
In addition, the
Supreme Court has noted that “the State’s interest in maintaining
an electoral system” is “a legitimate factor to be considered by
courts
among
the
‘totality
of
circumstances’
whether a § 2 violation has occurred.”
in
determining
Houston Lawyers’ Ass’n v.
Attorney Gen. of Tex., 501 U.S. 419, 426 (1991) (vote dilution). 127
The totality of the circumstances analysis is “local in
nature.”
League, 769 F.3d at 243.
intensive
inquiry
to
determine
The court undertakes this fact“upon
a
searching
practical
evaluation of the past and present reality whether the political
process is equally open to minority voters.”
79
(citations
and
internal
quotation
Gingles, 478 U.S. at
marks
omitted).
“This
determination is peculiarly dependent upon the facts of each case,
and requires an intensely local appraisal of the design and impact
of
the
contested
electoral
mechanisms.”
Id.
(citations
and
127
Legitimate interests served by a decision or rule have been found to
be relevant in other statutory race discrimination claims.
Cf. Tex.
Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135
S. Ct. 2507, 2522 (2015) (“An important and appropriate means of ensuring
that disparate-impact liability is properly limited is to give housing
authorities and private developers leeway to state and explain the valid
interest served by their policies.
This step of the analysis is
analogous to the business necessity standard under Title VII and provides
a defense against disparate-impact liability.”).
202
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 208 of 485
internal
quotation
marks
omitted).
Where
multiple
electoral
mechanisms are challenged, the court considers evidence of “their
cumulative effect on minority access to the ballot box,” League,
769 F.3d at 242, taking a “‘functional’ view of the political
process,” Gingles, 478 U.S. at 45; see also Clingman v. Beaver,
544 U.S. 581, 607–08 (2005) (O’Connor, J., concurring in part and
concurring in the judgment) (“A panoply of regulations, each
apparently defensible when considered alone, may nevertheless have
the combined effect of severely restricting participation and
competition.”).
The ultimate factual finding of vote denial or
abridgement rests on this court’s “particular familiarity with the
indigenous political reality.”
As
noted
above,
in
Gingles, 478 U.S. at 79.
addition
to
bearing
the
burden
of
demonstrating that the challenged voting practice results in an
inequality of opportunity, a § 2 plaintiff also bears the burden
of demonstrating that the inequality of opportunity is “caused by
or
linked
to
‘social
and
historical
conditions’
that
have
[produced] or currently produce discrimination against members of
the protected class.”
478 U.S. at 47).
League, 769 F.3d at 240 (quoting Gingles,
For this reason, the Sixth Circuit has observed,
the few courts that have considered vote denial claims have noted
that
the
Gingles
factors
have
been
expressed
either
as
a
“‘causation requirement,’ or through statements that a plaintiff
cannot
establish
a
Section
2
violation
merely
by
showing
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a
disproportionate impact or burden.”
Ohio State Conf. of NAACP v.
Husted, 768 F.3d 524, 554 n.9 (6th Cir. 2014) (collecting cases),
vacated on other grounds, No. 14-3877, 2014 WL 10384647 (6th Cir.
Oct. 1, 2014).
Other courts have made the same observation. See, e.g., Frank
v. Walker, 768 F.3d 744, 753 (7th Cir. 2014) (“Section 2(b) tells
us that § 2(a) does not condemn a voting practice just because it
has a disparate effect on minorities. (If things were that simple,
there wouldn’t have been a need for Gingles to list nine nonexclusive factors in vote-dilution cases.)”); Gonzalez v. Arizona,
677 F.3d 383, 405 (9th Cir. 2012) (en banc) (“[A] § 2 challenge
based purely on a showing of some relevant statistical disparity
between minorities and whites, without any evidence that the
challenged voting qualification causes that disparity, will be
rejected.”)
(citations
and
internal
quotation
marks
omitted),
aff’d sub nom. Arizona v. Inter Tribal Council of Ariz., Inc., 133
S.
Ct.
2247
Clements,
999
(2013);
F.2d
League
831,
of
United
866–67
(5th
Latin
Am.
Cir.
1993)
Citizens
(en
v.
banc)
(hereinafter, “LULAC”) (“[T]he Senate Report, while not insisting
upon a causal nexus between socioeconomic status and depressed
participation,
clearly
did
not
dispense
with
proof
that
participation in the political process is in fact depressed among
minority citizens.”); Salas v. Southwest Texas Jr. Coll. Dist.,
964 F.2d 1542, 1556 (5th Cir. 1992) (finding that plaintiffs
204
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“offered no evidence directly linking [lower turnout] with past
official
discrimination”);
Irby
v.
Virginia
State
Bd.
of
Elections, 889 F.2d 1352, 1359 (4th Cir. 1989) (rejecting § 2 claim
because “[t]he evidence cast considerable doubt on the existence
of
a
causal
link
between
the
appointive
system
and
black
underrepresentation”); Brown, 895 F. Supp. 2d at 1249 (“[I]n the
Eleventh Circuit a plaintiff must demonstrate something more than
disproportionate impact to establish a Section 2 violation.”).
In conducting its analysis, the court is guided by the fact
that “Congress intended to give the Voting Rights Act ‘the broadest
possible scope.’”
League, 769 F.3d at 240 (quoting Allen v. State
Bd. of Elections, 393 U.S. 544, 567 (1969)).
This is reflected by
the Senate Report, which found that because “courts have recognized
that
disproportionate
education,
employment,
income
level
and
living conditions arising from past discrimination tend to depress
minority political participation . . . [w]here these conditions
are shown, and where the level of black participation in politics
is depressed, plaintiffs need not prove any further causal nexus
between their disparate socio-economic status and the depressed
level
of
political
participation.”
S.
Rep.
97-417
at
29
n.114, reprinted in 1982 U.S.C.C.A.N. at 207 n.114.
Turning to the types of voting changes at issue in the present
case, although many courts, including the Supreme Court in Crawford
v. Marion County Election Board, 553 U.S. 181 (2008), have examined
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the burden imposed on voters by requiring photo ID, few have
conducted this analysis within the context of a § 2 claim.
Texas:
In August 2015, the Fifth Circuit applied the two-step test
from the Sixth and Fourth Circuits to Texas’s photo-ID requirement
and upheld the district court’s finding that it violated § 2 of
the VRA.
Veasey v. Abbott, 796 F.3d 487, 504, 513 (5th Cir. 2015),
rehearing en banc granted, No 14-41127, 2016 WL 929405 (5th Cir.
Mar. 9, 2016).
voters,
or
The district court found “that 608,470 registered
4.5%
qualifying ID.
of
all
registered
Id. at 505.
voters
in
Texas,”
lacked
Of those without qualifying ID,
534,512 did not qualify for a disability exemption from Texas’s ID
requirement.
Id. at 505-06.
The Fifth Circuit also credited the
district court’s finding that those without qualifying ID were
disproportionately African American, Hispanic, and poor, and that
“hundreds of thousands of voters face[d] round-trip travel times
of 90 minutes or more to the nearest location issuing” acceptable
ID.
Id. at 506-07.
Based on these findings, the court found that
“[t]he district court did not err in concluding that [Texas’s
photo-ID
requirement]
disproportionately
African-American voters.”
Id. at 509.
impacts
Hispanic
and
In analyzing whether this
burden could be linked to social and historical conditions, the
court
reviewed
factors.
the
district
Id. at 509-512.
court’s
findings
on
the
Gingles
Most pertinent here, the court did not
206
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disturb
the
district
court’s
requirement was tenuous.
finding
that
Id. at 511-12.
Texas’s
photo-ID
The court found that
“[w]hile in-person voting fraud is rare and mail-in fraud is
comparatively much more common, [Texas’s ID law] would only combat
the former.”
Id. at 511-12.
The court also credited the district
court’s finding that there was “no credible evidence” that Texas’s
ID
requirement
would
increase
voter
confidence
or
increase
turnout, and that the requirement would instead decrease turnout.
Id. at 512.
The district court also discounted public opinion
polls showing high levels of support for a photo-ID requirement on
the ground that the polls did not contemplate the associated burden
on minority voters. Id. Considering the district court’s findings
as a whole, the court held that the district court did not clearly
err in finding Texas’s ID requirement to violate § 2 of the VRA.
Id. at 513.
However, on March 9, 2016, the Fifth Circuit announced
that it would rehear the case en banc.
(5th Cir. 2016).
No 14-41127, 2016 WL 929405
Under Fifth Circuit local rules, this has the
effect of vacating the panel’s opinion and judgment.
5th Cir. R.
41.3 (effect of granting rehearing en banc); Comer v. Murphy Oil,
USA, 607 F.3d 1049, 1053 (5th Cir. 2010).
Wisconsin:
In Frank v. Walker, 768 F.3d 744 (7th Cir. 2014), the Seventh
Circuit
found
that
Wisconsin’s
photo-ID
requirement
violate the Constitution or § 2 of the VRA.
did
Id. at 755.
not
The
207
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court’s characterization of the relevant burden and State interest
in its constitutional analysis tended to shape its § 2 analysis.
See id. at 753.
The court tethered its burden analysis closely to
the Supreme Court’s decision in Crawford and found that Wisconsin’s
photo-ID requirement was no more burdensome than the Indiana law
upheld in Crawford.
See, e.g., id. at 745-46, 48-49.
The court
found that acquiring acceptable photo ID was sufficiently easy in
Wisconsin that any disparities that existed were the product of
disinterest, rather than disenfranchisement.
In the court’s own
words:
Plaintiffs describe registered voters who lack photo ID
as “disenfranchised.” If the reason they lack photo ID
is that the state has made it impossible, or even hard,
for them to get photo ID, then “disfranchised” might be
an apt description. But if photo ID is available to
people willing to scrounge up a birth certificate and
stand in line at the office that issues drivers’
licenses, then all we know from the fact that a
particular person lacks a photo ID is that he was
unwilling to invest the necessary time. And Crawford
tells us that “the inconvenience of making a trip to the
[department of motor vehicles], gathering the required
documents, and posing for a photograph surely does not
qualify as a substantial burden on the right to vote, or
even represent a significant increase over the usual
burdens of voting.”
Id. at 748 (quoting Crawford, 553 U.S. at 198).
non-substantial
burden
requirement,
court
the
imposed
reasoned
by
that
In light of the
Wisconsin’s
the
only
basis
photo-ID
for
not
upholding it would be if it did not serve any important purpose.
Id. at 749.
For reasons similar to those articulated by the
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district court in Veasey, the district court in Frank had held
that Wisconsin’s voter-ID law did not serve any legitimate purpose.
Id.
The Seventh Circuit viewed the district court’s analysis as
being contrary to Crawford, which, in its view, had established
that, notwithstanding the absence of voter fraud in a jurisdiction,
voter-ID requirements serve legitimate State interests.
Id. at
749-51. Specifically, the court viewed the Supreme Court’s finding
that “a photo ID requirement promotes public confidence in the
electoral system” as a “‘legislative fact’ — a proposition about
the state of the world, as opposed to a proposition about these
litigants or about a single state.”
Id. at 750.
According to the
court:
Photo ID laws promote confidence, or they don't; there
is no way they could promote public confidence in Indiana
(as Crawford concluded) and not in Wisconsin. This means
that they are valid in every state—holding constant the
burden each voter must bear to get a photo ID—or they
are valid in no state. Functionally identical laws
cannot be valid in Indiana and invalid in Wisconsin (or
the reverse), depending on which political scientist
testifies, and whether a district judge's fundamental
beliefs (his “priors,” a social scientist would say) are
more in line with the majority on the Supreme Court or
the dissent.
Id.
The court asserted that it was bound by such legislative facts
“even if 20 political scientists disagree with the Supreme Court.”
Id.
Turning to the § 2 inquiry, the court concurred with the Sixth
and Fourth Circuits that a vote denial claim consists of two
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elements, but expressed skepticism about the second step of the
test on the ground that “it does not distinguish discrimination by
the [State] from other persons’ discrimination.” Id. at 755. This
distinction, however, did not prove material, as the court said
that even if it were to adopt the test in full, plaintiffs would
fail the first step.
Id.
Despite the district court’s finding
that minorities were less likely to possess qualifying ID, id. at
746, the Seventh Circuit held that Wisconsin’s law nevertheless
provided “everyone . . . the same opportunity to get a qualifying
photo ID,” id. at 755.
Despite the guidance offered by Veasey and Frank, the cases
are of limited assistance in deciding Plaintiffs’ § 2 claim in
this case because neither Texas nor Wisconsin had a reasonable
impediment exception.
In fact, this court is not aware of any
case where a photo-ID requirement with a reasonable impediment
exception has been considered under § 2. This is significant
because the reasonable impediment exception provides a fail-safe
voting option for the very groups that Veasey and Frank centered
on:
socioeconomically-disadvantaged
individuals
without
qualifying ID.
Only a small handful of cases have addressed a legislature’s
modification under § 2 of the other voting mechanisms in this case.
Briefly, they are:
South Dakota:
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In Brooks v. Gant, No. 12cv5003, 2012 WL 4482984 (D.S.D. Sept.
27, 2012), Native American voters living within Shannon County,
South Dakota, sued for declaratory and injunctive relief based on
the
county’s
failure
to
establish
early,
in-person
voting
locations and days similar to those offered in virtually every
other county.
Id. at *1.
Plaintiffs alleged that their six days
of early voting during the 2012 primary and general elections,
which was less than that to be offered in similar counties, would
require those who missed the dates to travel between one and three
hours to the next nearest early-voting site and was less than the
opportunity provided to white voters.
Id. at *7.
Coupled with
allegations that Native Americans distrust voting by mail and that
early voting in the county in the past saw increased (nearly
doubled) turnout, these claims were held sufficient to state a
claim under § 2.
Id. at *7-8.
In other words, the court held,
having decided to offer early voting, a State must offer it
equally.
Florida:
In Jacksonville Coalition for Voter Protection v. Hood, 351
F. Supp. 2d 1326 (M.D. Fla. 2004), voter groups sought, under § 2,
to enjoin Duval County, Florida’s decision not to offer more earlyvoting sites for the 2004 election.
Id. at 1328, 1334.
Initially,
only one site was planned, but officials agreed to add four more
sites.
Id. at 1330.
Plaintiffs alleged that Duval County had the
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“largest
percentage
of
African-American
registered
voters
of
Florida’s most densely populated counties” and that these African
American voters would have less opportunity to vote in the upcoming
election and thus be disproportionately affected.
Id. at 1334.
The district court denied the requested injunction because the
record showed that three of the four new sites were in African
American
communities,
alleviating
travel
burdens;
that
the
communities farther away were predominantly white; and that the
lack of days before the election rendered the request infeasible.
Id. at 1335-37.
In dicta, the court expressed concern over the
“far-reaching implications” of plaintiffs’ argument; namely, that
it would support an argument to require a State with a higher
percentage of African American voters but without early voting to
adopt it, or would require a State with a lower percentage of
African American voters than Florida to offer more days of early
voting.
Id. at 1335-36.
The court concluded:
“This simply cannot
be the standard for establishing a Section 2 violation.”
Id. at
1336.
Separately, in May 2011, Florida decided, as part of some
eighty sets of changes to election law in HB 1355, to reduce early
voting from a possible 12-14 days to 8 days, thus eliminating the
Sunday before Election Day and granting supervisors discretion to
allow as few as forty-eight hours of early voting.
Florida v.
United States, 885 F. Supp. 2d 299, 308-09, 302 (D.D.C. 2012) (per
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curiam) (panel comprised of Garland, Kollar-Kotelly, and Huvelle).
The U.S. Attorney General refused to pre-clear the law under § 5,
and Florida sued in the United States District Court for the
District of Columbia.
Id. at 302.
The court also declined to
pre-clear the law because Florida failed to prove that the changes
were not retrogressive (the § 5 standard), but the court stated
that it could likely do so if the new law required the same number
of voting hours as the old one (ninety-six hours) and did so on a
7 a.m. to 7 p.m. basis.
Id. at 357.
Despite testimony from voting
rights groups that the two-week period had been essential to GOTV
efforts, the court found that the GOTV groups “could adjust to a
redistribution of the total 96 hours over
a different number of
days, including weekend days and a ‘souls-to-the-polls’ Sunday.”
Id. at 337.
In fact, the court found, “[e]xpanding convenient
non-working weekday and weekend voting hours should . . . help
third-party efforts to provide transportation to the polls for
such voters.”
Id.
The court also noted that the implementation
of such hours, which establishes non-retrogression, “will be a
significant factor in favor of a finding of nondiscriminatory
purpose.”
Id. at 350-51.
Florida made the change, and DOJ agreed
not to object to pre-clearance.
Thereafter, a group of African American leaders sued to enjoin
the law under § 2.
Brown, 895 F. Supp. 2d at 1238.
On motion for
preliminary injunction, the court denied relief, finding a lack of
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substantial likelihood of success as to either discriminatory
intent or discriminatory results.
Id. at 1255-56.
This, even
though African Americans disproportionately used early voting; the
law was introduced via a “strike-all” amendment process the day
before it was to be taken up; public comment was limited to three
minutes per person; one State senator made a floor comment that
“he did not want to make it easier to vote” 128; and, as noted above,
the law was part of some eighty changes to Florida’s election
rules.
Id. at 1246-48.
Proponents argued that the law was
intended to “increase flexibility and make the early voting process
more efficient,” and to be a “compromise” in reducing days but
granting greater flexibility as to hours. Id. at 1248. Plaintiffs
argued that the changes would not actually reduce, but would more
likely increase, costs, were not the result of any empirical study,
and did not serve the voting public as well as a fifteen-day time
period.
Id.
The court noted the distinction between the § 5
inquiry of retrogression and the present § 2 analysis:
Moreover, in contrast to the Section 5 case before the
Florida court, this Court, as Plaintiffs conceded at the
hearing, is not conducting a “retrogression” analysis,
meaning, this Court is not comparing the new statute
against the old to determine whether these voting
changes will “worsen the position of minority voters in
comparison to the preexisting voting standard, practice,
128
Worse, the senator was the Senate President Pro Tempore and added
that “it should be harder to vote – as it is in Africa.” Brown, 895 F.
Supp. 2d at 1247. The court noted that the three-judge § 5 court found
this statement insufficient proof of discriminatory legislative intent
because the senator was not a bill proponent and had little authority,
and likewise declined to find discriminatory intent. Id. at 1247-48.
214
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or procedure.” Rather, the task before this Court under
Section 2 of the VRA is to conduct a “practical
evaluation of the past and present reality” to determine
whether, under the totality of the circumstances,
application of the 2011 Early Voting Statute serves to
deny African American voters equal access to the
political process. The important distinction between a
Section 5 and a Section 2 claim plays a significant role
in the Court’s decision in this case.
Id. at 1251 (citations and internal quotation marks omitted).
Despite accepting the findings of experts (Drs. Gronke and Stewart)
that the changes would disproportionately affect African American
voters, id.,
the
Brown
court
found
that
“[b]ecause
[the
new
statute] allows early voting during non-working hours, as well as
voting during the weekend, including one Sunday, voting times which
are important to African American voters, as well as to GOTV
efforts, the Court cannot find that [it] denies equal access to
the polls,” id. at 1255.
In doing so, the court also found the
experience of other States important (noting similar statistics to
those presented in the present case) and cautioned that “acceptance
of Plaintiffs’ argument that the eight days of early voting allowed
by the Florida legislature violates Section 2 could have farreaching implications,” citing the concerns raised in Hood, 351 F.
Supp. 2d. at 1335-36.
Id. at 1254.
The court framed the issue as
follows: “whether the State of Florida, having decided to allow
early voting, has adopted early voting procedures that provide
equal access to the polls for all voters in Florida.”
Id. at 1254-
55.
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Ohio:
In Ohio State Conference of N.A.A.C.P. v. Husted, 768 F.3d
524 (6th Cir. 2014), vacated on other grounds, 129 No. 14-3877, 2014
WL 10384647 (6th Cir. Oct. 1, 2014), plaintiffs moved to enjoin
Ohio’s adoption of SB 238 and Directive 2014-17 under § 2 of the
VRA and the Fourteenth Amendment.
Id. at 529.
At issue was Ohio’s
reduction of early voting 130 from thirty-five to thirty days, thus
eliminating five days that, because they overlapped with ordinary
registration, were known as “Golden Week.”
Id. at 532. Factually,
the case is distinguishable: Ohio had only one early-voting site
available per county, open only 8 a.m. to 5 p.m., id. at 539; the
State provided no evidence that it could not verify Golden Week
SDR-voters as easily as others who registered on the last day of
regular registration, especially since all absentee voters were
verified on Election Day and the State had thirty days to verify
even those who registered during Golden Week, id. at 547; and there
was no evidence that local boards of elections had struggled
sufficiently to cope with early voting administratively, id. at
548 (quoting Obama for America v. Husted, 697 F.3d 423, 443-33
129
It appears that the case was dismissed after some type of settlement
that left in place the law’s elimination of the overlap of five days of
registration with early voting during Golden Week. A new set of
plaintiffs have filed suit challenging various provisions.
See Ohio
Democratic Party v. Husted, No. 2:15cv1802 (S.D. Ohio 2015).
130
Ohio had adopted early voting in 2005 in response to problems in the
2004 election that caused voters to wait from two to twelve hours to
vote. Id. at 530-31.
216
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(6th Cir. 2012) (holding that the State's asserted interest in
reducing costs and administrative burdens did not justify the
burdens on voters because there was “no evidence that local boards
of elections have struggled to cope with early voting in the
past”)). Some of the same experts testified, including Dr. Gronke,
Dr. Burden, and Mr. Trende.
The district court enjoined the
elimination, and the Sixth Circuit affirmed.
Id. at 561.
On the § 2 claim, the Sixth Circuit articulated the two-part
test set forth above.
It then explained that “what is distinct
between a Section 5 analysis and a Section 2 analysis is the role
that prior law plays in the comparison,” stating that “under the
Section 2 analysis, the focus is whether minorities enjoy less
opportunity to vote as compared to other voters.”
Id. at 558.
It
was in this manner that disproportionate use of the old law was
relevant.
Id.
The court held that plaintiffs presented evidence
that the eliminated early-voting times “are those that African
Americans disproportionately use, and that racial inequalities in
socioeconomic status and other factors make it much more difficult
for African Americans to vote at the remaining times or through
the other methods now available under the status quo as compared
to other groups.”
Id. at 558-59. 131
131
As noted, the Sixth Circuit
On the Anderson-Burdick claim, the court affirmed the district
finding that the burden was “significant” but not “severe” as not
erroneous “given the extensive evidence in the record of the
African American, lower-income, and homeless voters will face in
court’s
clearly
burdens
voting,
217
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subsequently vacated its decision.
North Carolina:
In League of Women Voters of N.C. v. North Carolina, 769 F.3d
224, 242 (4th Cir. 2014), the Fourth Circuit applied the two-part
test
from
Husted
to
the
record
preliminary injunction stage.
that
existed
at
this
case’s
The court found that Plaintiffs
were likely to succeed on their § 2 claim as to the elimination of
SDR and OOP.
Id. at 247.
In reaching this conclusion, the court
reasoned that, on the record available, SDR and OOP “were enacted
to
increase
voter
participation,
[]
African
American
voters
disproportionately used those electoral mechanisms, and [SL 2013381]
restricted
those
mechanisms
and
impacts African American voters.”
Id.
thus
disproportionately
Viewed in light “of
relevant ‘social and historical conditions’ in North Carolina,”
the court found that SL 2013-381 “looks precisely like the textbook
example of Section 2 vote denial.”
As
is
plain
from
the
Id. at 246.
court’s
findings
above,
the
trial
evidence contradicted many of the factual premises Plaintiffs
presented at the preliminary injunction stage that underlay the
Fourth Circuit’s decision.
For example, the evidence demonstrated
that early voting actually depresses voter turnout, and SDR,
because it is offered as a part of early voting (compared to EDR,
absent the times eliminated by SB 238 and Directive 2014-17.”
768 at 545.
Husted,
218
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which is offered on Election Day), has not been shown to increase
turnout
in
a
statistically
significant
manner.
Further,
Plaintiffs failed to show that OOP increases voter turnout.
In
addition, while disproportionate use was the principal evidence
available to predict the effects of SL 2013-381 at the time, the
2014 election data is now available and provides this court with
evidence of how minorities actually participate under SL 2013-381.
Accordingly,
this
court
will
apply
the
Fourth
Circuit’s
articulated legal principles, including the two-prong test, and
other relevant case law to the fully-developed, extensive trial
record.
2.
The Totality of the Circumstances & Gingles
The inquiry under the totality of the circumstances is whether
the
provisions
“impose
a
of
SL
2013-381,
discriminatory
individually
burden”
on
or
Hispanics
cumulatively,
and
African
Americans, “caused by or linked to social and historical conditions
that have or currently produce discrimination,” such that they
have “less opportunity than other members of the electorate to
participate in the political process and to elect representatives
of their choice.”
marks
omitted).
League, 769 F.3d at 240 (internal quotation
Although
“there
is
no
requirement
that
any
particular number of factors be proved, or [even] that a majority
of them point one way or the other,” League, 769 F.3d at 240
(citing Gingles, 478 U.S. at 45), the Fourth Circuit has directed
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that the Gingles factors “may shed some light on whether the two
elements of a Section 2 claim are met,” id.
Accordingly, this
court turns to an analysis of the Gingles factors as reflected by
the court’s findings of fact.
a.
The Success of the Prior Practices in
Fostering Minority Political Participation
As noted, the Fourth Circuit directed that the “success[]” of
North
Carolina’s
“previous
voting
practices”
in
“fostering
minority participation” is “centrally relevant” under § 2, being
a “critical piece of the totality-of-the-circumstances analysis
Section 2 requires.”
League, 769 F.3d at 242.
Despite this early appellate guidance, Plaintiffs offered no
evidence that the old early-voting schedule, SDR, or OOP voting
“foster[ed] minority participation.” 132
In fact, as noted above
the evidence showed that early voting depresses voter turnout and
SDR has not been shown to increase turnout in a statistically
significant manner.
Instead, Plaintiffs’ experts rely on disproportionate use
statistics for select elections to argue that African Americans
were able to exceed parity with whites in terms of registration
and turnout because of the eliminated procedures.
This evidence
132
Although Plaintiffs showed that pre-registration increases turnout
generally, the evidence demonstrated that its benefits are race-neutral.
There is no evidence in this case that the system of signature
attestation that preceded the voter-ID requirement fostered minority
political participation.
220
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is certainly relevant, but, as the court’s findings of fact show,
it does not justify such an inference.
Fourth
Circuit’s
directive
was
too
It cannot be that the
burdensome
on
Plaintiffs,
because their experts admitted that they were capable of analyzing
how such procedures affected political participation and have done
so in the past.
For whatever reason, however, they declined to
produce such evidence in this case.
Plaintiffs did present evidence that African Americans used
early voting as part of GOTV and “souls-to-the-polls” efforts,
largely as a component of targeted campaigns to capitalize on the
early voting and late registration opportunity.
prior,
disproportionate
evidence
of,
participation.
but
use
does
of
not
the
equate
electoral
Such evidence of
to,
mechanisms
fostering
is
minority
As a three-judge panel has cautioned as to early
voting in the § 5 context:
[A] change is not retrogressive simply because it deals
with a method of voting or registration that minorities
use more frequently, or even because it renders that
method marginally more difficult or burdensome. Rather,
to be retrogressive, a ballot access change must be
sufficiently burdensome that it will likely cause some
reasonable minority voters not to register to vote, not
to go to the polls, or not to be able to cast an effective
ballot once they get to the polls.
Florida, 885 F. Supp. 2d at 312.
Instead, where there have been
subsequent elections without the desired mechanisms, the more
probative
evidence
is
the
participation
elections without the desired mechanisms.
data
from
the
later
See Purcell, 549 U.S.
221
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at
6
(Stevens,
J.,
concurring)
rather than speculation”).
(preferring
“historical
facts
Here, this latter evidence suggests
strongly that the eliminated mechanisms were not the cause of
increased
minority
political
participation
because
African
American and Hispanic turnout rates (compared to the previous
midterm) and registration rates (compared to either the previous
midterm or even the previous presidential election) increased
without the mechanisms.
In addition, the parties all agree that
a campaign strategy of targeting the removed mechanisms was a
driver of minority use in 2008 and 2012.
In Shelby County v. Holder, 133 S. Ct. 2612 (2013), the
Supreme Court struck down as unconstitutional § 4(b) of the VRA,
which was the formula used to determine which States and political
subdivisions were subject to pre-clearance by the DOJ.
2361.
The
unmistakably
Supreme
Court’s
decision
premised
on
fact
the
that
in
Id. at
Shelby
County
was
minority
turnout
and
registration rates in most jurisdictions covered by § 5 were at or
above parity.
Id. at 2618–19 (“Census Bureau data indicate that
African–American voter turnout has come to exceed white voter
turnout in five of the six States originally covered by § 5, with
a gap in the sixth State of less than one half of one percent.”). 133
133
See also Shelby Cty., 133 S. Ct. at 2621 (“[T]hings have changed in
the South. Voter turnout and registration rates now approach parity.
Blatantly discriminatory evasions of federal decrees are rare.
And
minority candidates hold office at unprecedented levels.” (quoting
222
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Likewise, there can be little dispute that minority turnout and
registration rates are important to the purposes of the VRA, given
that the pre-clearance coverage formula was based on those precise
metrics.
‘covered’
Id. at 2619 (“At the time of the Act’s passage, these
jurisdictions
were
those
States
or
political
subdivisions that had maintained a test or device as a prerequisite
to voting as of November 1, 1964, and had less than 50 percent
voter
registration
or
turnout
in
the
1964
Presidential
election.”); id. at 2620 (“In 1970, Congress reauthorized the Act
for another five years, and extended the coverage formula in § 4(b)
to jurisdictions that had a voting test and less than 50 percent
voter
registration
or
turnout
as
of
1968.”);
id.
(“In
1975,
Northwest Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 202
(2009))); id. at 2627 (“When upholding the constitutionality of the
coverage formula in 1966, we concluded that it was ‘rational in both
practice and theory.’ The formula looked to cause (discriminatory tests)
and effect (low voter registration and turnout), and tailored the remedy
(preclearance) to those jurisdictions exhibiting both.” (quoting South
Carolina v. Katzenbach, 383 U.S. 301, 330 (1966))); id. at 2627–28
(“Coverage today is based on decades-old data and eradicated practices.
The formula captures States by reference to literacy tests and low voter
registration and turnout in the 1960s and early 1970s. But such tests
have been banned nationwide for over 40 years. And voter registration
and turnout numbers in the covered States have risen dramatically in the
years since. Racial disparity in those numbers was compelling evidence
justifying the preclearance remedy and the coverage formula. There is
no longer such a disparity.” (citations omitted)); id. at 2628 (“In 1965,
the States could be divided into two groups: those with a recent history
of voting tests and low voter registration and turnout, and those without
those characteristics. Congress based its coverage formula on that
distinction. Today the Nation is no longer divided along those lines,
yet the Voting Rights Act continues to treat it as if it were.”); id.
(“[Between 1965 and 2006], largely because of the Voting Rights Act,
voting tests were abolished, disparities in voter registration and
turnout due to race were erased, and African–Americans attained political
office in record numbers.”).
223
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Congress reauthorized the Act for seven more years, and extended
its coverage to jurisdictions that had a voting test and less than
50 percent voter registration or turnout as of 1972.”); id. at
2625 (“Those conclusions are not ours alone. Congress said the
same
when
it
‘[s]ignificant
generation
reauthorized
progress
barriers
has
the
Act
been
experienced
in
made
by
2006,
in
minority
writing
eliminating
voters,
that
first
including
increased numbers of registered minority voters, minority voter
turnout,
and
minority
representation
in
Congress,
State
legislatures, and local elected offices.’” (quoting Fannie Lou
Hamer,
Rosa
Parks,
and
Coretta
Scott
King
Voting
Rights
Act
Reauthorization and Amendments Act of 2006, § 2(b)(1), 120 Stat.
577)); id. (“The House Report elaborated that ‘the number of
African–Americans who are registered and who turn out to cast
ballots
has
increased
significantly
over
the
last
40
years,
particularly since 1982,’ and noted that ‘[i]n some circumstances,
minorities register to vote and cast ballots at levels that surpass
those of white voters.’” (quoting H.R. Rep. No. 109–478, at 12
(2006), reprinted in 2006 U.S.C.C.A.N. 618, 627)).
Historically, when courts have found § 2 violations, they
have frequently grounded that decision in part on lagging minority
turnout and registration rates.
See, e.g., Veasey, 796 F.3d at
510; Miss. State Chapter, Operation Push, Inc. v. Mabus, 932 F.2d
400, 413 (5th Cir. 1991); Gomez v. City of Watsonville, 863 F.2d
224
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1407, 1416 n.4 (9th Cir. 1988) (“Low voter registration and turnout
have often been considered evidence of minority voters’ lack of
ability to participate effectively in the political process.”);
Jeffers v. Tucker, 847 F. Supp. 655, 660 (E.D. Ark. 1994); Ward v.
Columbus Cty., 782 F. Supp. 1097, 1104 (E.D.N.C. 1991); Neal v.
Coleburn, 689 F. Supp. 1426, 1428 (E.D. Va. 1988).
And when courts
find no § 2 violation, they also rely on the electoral mechanism’s
effect on minority success in turnout and registration rates, or
else find the failure to produce such evidence fatal.
See, e.g.,
Frank, 768 F.3d at 747, 751, 753–54; Smith v. Brunswick Cty., 984
F.2d 1393, 1395, 1400–02 (4th Cir. 1993); LULAC, 999 F.2d at 867;
id. at 914 n.16 (King, J., dissenting); Salas, 964 F.2d at 1550,
1555–56; Solomon v. Liberty Cty., 957 F. Supp. 1522, 1563–65 (N.D.
Fla. 1997), aff’d sub nom. Solomon v. Liberty Cty. Comm'rs, 221
F.3d 1218 (11th Cir. 2000) (en banc).
As Justice Thomas has
explained, turnout and registration rates are the primary metrics
of whether electoral procedures have “served to suppress minority
voting.”
Holder v. Hall, 512 U.S. 874, 926–27 (1994) (Thomas, J.,
concurring) (“[I]n some circumstances, results in recent elections
might also be relevant for demonstrating that a particular practice
concerning registration or polling has served to suppress minority
voting.
Better factors to consider would be figures for voter
registration or turnout at the last election, broken down according
to race.”).
225
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The point is not that the 2014 turnout and registration rates
are the only or dispositive evidence of causation in this case;
they are not.
See Frank, 768 F.3d at 754.
It is merely that
Plaintiffs have not carried the burden of showing that the former
electoral provisions “foster[ed] minority participation,” League,
769 F.3d at 242, and the State has offered evidence that they did
not.
Though capable of producing such evidence, and if the
mechanisms had such an effect, Plaintiffs did not introduce it.
Rather, they offered earlier disproportionate use figures, which
are less probative on this “critical piece of the totality-of-thecircumstances analysis” than the 2014 data.
League, 769 F.3d at
242.
In sum, when increased minority participation correlates with
the availability of so-called convenience voting procedures, 134 it
is
some
evidence
participation.
that
they
are
fostering
the
increased
But when minority participation increases despite
the unavailability of such mechanisms, the causal inference is
rebutted, especially where Plaintiffs have failed to show what
turnout and registration rates would have been in 2014 had the
conveniences been available.
therefore
finds
that
this
Such is the case here.
consideration
does
not
The court
favor
the
134
As noted in the findings of fact, the correlation itself is far from
clear, and significant evidence, besides the 2014 data, tends to rebut
the inference of causation.
226
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Plaintiffs.
b.
History of Official Discrimination
The first Gingles factor has the court examine “the extent of
any history of official discrimination in the state or political
subdivision that touched the right of the members of the minority
group to register, to vote, or otherwise to participate in the
democratic process.”
478 U.S. at 36–37.
As the text of the factor
itself expresses, the relevant history of discrimination must be
“official.”
All
evidence
of
discrimination
is
relevant,
and
North
Carolina has a sordid history dating back well over a century that
the
court
fully
considers.
But,
as
with
most
evidence,
“contemporary examples of discrimination are more probative than
historical examples.” Veasey, 796 F.3d at 509 (citing Shelby Cty.,
133 S. Ct. at 2628).
The Supreme Court has cautioned, “[P]ast
discrimination cannot, in the manner of original sin, condemn
governmental action that is not itself unlawful. . . .
More
distant instances of official discrimination in other cases are of
limited help . . . .”
City of Mobile v. Bolden, 446 U.S. 55, 74
(1980), superseded on other grounds by statute, Voting Rights Act
Amendments of 1982, Pub. L. No. 97-205, 96 Stat. 131; accord Wesley
v. Collins, 791 F.2d 1255, 1261 (6th Cir. 1986); Riddick v. Sch.
Bd. of City of Norfolk, 784 F.2d 521, 539 (4th Cir. 1986); cf.
Shelby Cty., 133 S. Ct. at 2629 (“The [Fifteenth] Amendment is not
227
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designed to punish for the past; its purpose is to ensure a better
future.”); Freeman v. Pitts, 503 U.S. 467, 495–96 (1992) (“In one
sense of the term, vestiges of past segregation by state decree do
remain in our society and in our schools.
Past wrongs to the black
race, wrongs committed by the State and in its name, are a stubborn
fact of history. And stubborn facts of history linger and persist.
But though we cannot escape our history, neither must we overstate
its consequences in fixing legal responsibilities.”).
Finally, the relevant history of official discrimination must
be brought “home to this case.”
LULAC, 999 F.2d at 847.
It must
interact with the challenged provisions of SL 2013-381.
League,
769 F.3d at 239; accord Salas, 964 F.2d at 1556; NAACP v. City of
Columbia, 850 F. Supp. 404, 421 (D.S.C. 1993) (“In this case, no
credible evidence of present day discrimination was presented.
There was, however, an abundance of uncontroverted testimony about
South Carolina’s past history of discrimination affecting voting,
and the plaintiffs have unquestionably prevailed as to this part
of the first Senate Report factor.
that
there
are
no
vestiges
of
Nevertheless, the court finds
past
discrimination
that
significantly interact with present political structures to deny
access to the political system.”).
With this in mind, the court turns to the testimony of James
L. Leloudis, II, Ph.D., Professor of History at the University of
228
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North Carolina at Chapel Hill. 135
Dr. Leloudis was Plaintiffs’
primary expert on the history of official discrimination in North
Carolina. 136
He divides the history of official discrimination
against African Americans in North Carolina into three chapters:
Civil War to Jim Crow; Jim Crow to the civil rights movement; and
the civil rights movement to the present day.
(Doc. 338 at 16.)
After the close of the Civil War, the government of North
Carolina instituted the Black Codes, which sought to reduce the
rights, including suffrage, of newly-emancipated slaves.
230 at 4–5.)
(Pl. Ex.
Federal Reconstruction intervened and caused North
Carolina to revise its State Constitution, ensuring political
liberties regardless of race.
(Id. at 5–7.)
As a result of the
expansion of the franchise, in 1868, the bi-racial Republican Party
took control of the governorship, legislature, and congressional
delegation.
(Id. at 7.)
By 1880, just fifteen years after the
Civil War, voter participation in North Carolina was 78% for whites
but an astounding 90% for African Americans.
(Pl. Ex. 237 at 13.)
An alliance of whites and African Americans continued to field
candidates and win elections, despite political violence by the
growing Ku Klux Klan.
(Pl. Ex. 230 at 7–8.)
135
Dr. Leloudis was proffered without objection as an expert in the
history of the United States and North Carolina. (Doc. 338 at 15-16.)
136
As analyzed further infra, Charles T. Clotfelter, Ph.D., testified
concerning the history of educational disparities in North Carolina’s
public schools.
229
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In 1894, this alliance controlled the General Assembly and
enacted legislation with what Dr. Leloudis describes as “the aim
of guaranteeing full and fair access to the franchise.”
10.)
the
(Id. at
These progressive changes, relevant to this case, included
creation
of
the
precinct
system,
and
a
requirement
citizens register and vote in their precinct of residence.
that
Act of
Mar. 8, 1895, ch. 159, §§ 5, 10, 14, 1895 N.C. Sess. Laws 211.
Registrars
and
election
judges
for
each
precinct
were
to
be
appointed from “each political party of the state,” rather than
the election system being controlled entirely by one political
party, as was the previous practice.
10).
Id. § 7; (Pl. Ex. 230 at
Ballot challenges could be made by any voter, without regard
to the residence of the challenger.
Act of Mar. 8, 1895, ch. 159,
§ 12.
There was also introduced one day on which everyone would
vote.
Id. § 3.
On this day, the polls were to open at 7 a.m. and
run “until sunset of the same day, and no longer.”
Felons,
women,
and
those
disqualified from voting.
below
the
Id. §§ 13-14.
age
of
Id. § 17.
twenty-one
were
The voter was also only
qualified if he had lived in the State for twelve months and the
county for ninety days preceding Election Day. Id. § 14. 137 Against
this historical backdrop and even under the conditions at the time,
137
There were various other provisions of the law, including a
prohibition on voter intimidation and public disclosure of campaign
financing. (See Pl. Ex. 230 at 10–11.)
230
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turnout among African Americans, many or most of whom were former
slaves, rose remarkably from 60% to 90%.
(Pl. Ex. 230 at 11.)
Things changed in the run-up to the 1898 election.
Democrats
engaged in a campaign full of racial violence and racial appeals.
(Id. at 13.)
For example, one prominent Democratic newspaper
published a cartoon bearing the caption “The Vampire that Hovers
over North Carolina” that portrayed an African American face with
“Negro Rule” on the wings.
(Id.)
As Election Day 1898 arrived,
Klansmen engaged in violence and voter intimidation at the polls.
Democrats won the election by a slim margin.
(Id. at 16.)
Now in control of the General Assembly, the Democrats enacted
a literacy test and other laws that had the effect of suppressing
the vote of African Americans and supporters of minority political
parties.
(Id. at 16.)
At this time, the SBOE and CBOEs were
created, having control over local registrars and election judges,
and all board members were appointed by the party in control of
the General Assembly.
Act of Mar. 6, 1899, ch. 507, §§ 4–5, 1899
N.C. Sess. Laws 658, 659.
The new laws also required every North
Carolinian to re-register, which would clearly make it easier for
Klansmen to intimidate African Americans.
Id. § 11.
In 1900, the Democrats again succeeded at the polls and would
remain in power for over 100 years, until the 2000s.
at 18.)
(Pl. Ex. 230
The following decades saw the introduction of Jim Crow
laws and other forms of segregation.
(Id. at 19–20.)
They also
231
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saw new discriminatory laws in the areas of education and labor.
(Id.)
The period from 1917 to 1950 saw gains for African American
political participation.
African Americans engaged in political
organization and successfully managed to register, despite the
literacy test.
(Id. at 20–22.)
Around 1950, segregation and the
civil rights movement began to move to the forefront of American
politics.
(Id. at 22–25.)
center of campaigns.
The era saw racial appeals at the
But in the 1960s, Terry Sanford was elected
governor, and he began to attack what he called the “povertysegregation complex” in the State.
(Id. at 25.)
At the federal
level, the Civil Rights Act was passed in 1964 and the VRA in 1965.
(Id. at 25–26.) The General Assembly, meanwhile, instituted multimember
legislative
districts
that
tended
to
dilute
African
American voting strength, which continued into the 1980s.
(Id. at
27–28.) 138
138
Dr. Leloudis’ testimony and expert report do not focus on legislative
districts after Gingles. The court notes, however, that North Carolina’s
district maps continued to be a source of litigation after the 1980s,
most notably with regard to North Carolina’s Twelfth Congressional
District. See, e.g., Easley v. Cromartie, 532 U.S. 234, 257-58 (2001)
(holding that plaintiffs failed to produce sufficient evidence to show
that one version of the Twelfth District had been drawn predominantly
on the basis of race); Shaw v. Hunt, 517 U.S. 899, 906 (1996) (holding
that an earlier version of the Twelfth District, which appeared to have
been drawn to “assure black voter majorities,” was an unconstitutional
racial gerrymander); Bartlett v. Strickland, 556 U.S. 1, 8 (2009)
(holding that the State’s creation of certain “crossover” State districts
to enhance minority voting power was not required by the VRA and
therefore violated the “whole county” provision of the State
232
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Dr. Leloudis does not catalog any official discrimination
after the 1980s.
By the turn of that decade, African Americans
were making significant headway in political strength.
By 1989,
there were nineteen African Americans in the General Assembly,
more than ever before.
(Id. at 28.)
By 1991, the office of
Speaker of the House was held by Representative Dan Blue, an
African American.
resulted
in
new
(Id.)
Redistricting under his leadership
majority-minority
districts.
(Id.)
These
successes paralleled local successes for African Americans.
at 29.)
agencies
(Id.
By 2001, 22% of the governor’s appointees to State
and
commissions
State’s demographics.
were
minorities,
(Id. at 29–30.)
which
matched
the
This recent period saw the
election of Henry Frye, the first African American chief justice
of
the
North
Carolina
Supreme
Court,
and
the
elevation
of
Representative Henry Michaux as the first African American leader
of the House Appropriations Committee.
(See, e.g., Doc. 338 at
41–42.)
constitution). In addition, though again not raised by the parties, the
court notes that similar issues have arisen in three lawsuits involving
North Carolina’s current State and congressional districts, two of which
remain pending in this district. See Dickson v. Rucho, __ N.C. __, 781
S.E.2d 404, 441 (2015) (finding no federal constitutional violation for
several congressional districts, including the First and Twelfth
Districts, as well as several State districts); Harris v. McCrory, No.
1:13cv949, 2016 WL 482052, at *21 (M.D.N.C. Feb. 5, 2016) (invalidating
maps for the First and Twelfth Congressional Districts as racial
gerrymanders); Covington v. North Carolina, No. 15cv399 (M.D.N.C.)
(challenging various State districts, many of which were held valid in
Dickson).
233
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During the period from 1992 to 2009, no-excuse early voting,
no-excuse absentee voting, SDR, OOP voting, and pre-registration
were enacted.
(Pl. Ex. 230 at 30.)
Dr. Leloudis admittedly did
not review the legislative record associated with these changes.
(Doc. 338 at 39–41.) Nevertheless, he asserts that “the net effect
of these reforms was steady improvement in voter turnout.”
(Pl.
Ex. 230 at 30.) Neither his report nor his testimony substantiates
such a claim.
Nor has any of the Plaintiffs’ other experts.
In
fact, during trial, Dr. Leloudis confessed he was “not comfortable
with that kind of speculation.” (Doc. 338 at 45–47.)
In short, he
was contradictory: he stood by his opinion that 2012 turnout would
have been lower absent the election reforms at issue, but he
refused to answer whether he would have predicted that the turnout
would have gone down in 2014 as being unwarranted speculation.
(Id.)
Finally, Dr. Leloudis opined on the challenged provisions of
SL 2013-381.
Here, his opinions lost their moorings in history
and became part advocacy.
entirety
of
SL
2013-381,
For example, he failed to consider the
did
not
meaningfully
consider
the
justifications for the provisions, and noted that while it was
possible that partisans can have policy differences without being
racist, his “preponderance of associations” led him to conclude
otherwise.
(Id. at 36-38)
Overall, the court credits Dr. Leloudis’ historical account
234
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up to the introduction of the voting laws at issue.
But from
there, he carries little credibility because his findings ignore
or
cursorily
discount
relevant
facts
inconsistent
opinions and are not based on “sufficient facts.”
702(b).
more
with
his
Fed. R. Evid.
These opinions are less those of a detached expert and
those
of
an
advocate.
Va.
Elec.
&
Power
Co.
v.
Sun
Shipbuilding & Dry Dock Co., 68 F.R.D. 397, 406 (E.D. Va. 1975)
(“It is evident from the definitions that an expert is expected to
owe his allegiance to his calling and not to the party employing
him.
In order to be an expert one must be in a position to testify
as an expert and not as a partisan.”).
In sum, the court has considered the history of official
racial
discrimination
in
North
Carolina
(and
unofficial
discrimination, to the extent relevant and offered), including the
opinions
of
Charles
T.
Clotfelter,
Ph.D.,
Professor
of
Law,
Economics, and Public Policy at Duke University, that are discussed
below.
There is significant, shameful past discrimination.
In
North Carolina’s recent history, however, certainly for the last
quarter
century,
there
is
little
official
discrimination
to
consider.
c.
Racially-Polarized Voting
The second Gingles factor considers “the extent to which
voting in the elections of the state or political subdivision is
racially polarized.”
478 U.S. at 37.
235
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The Supreme Court has noted that while “[s]ome commentators
suggest that racially polarized voting is waning — as evidenced
by, for example, the election of minority candidates where a
majority of voters are white. . . , [s]till, racial discrimination
and racially polarized voting are not ancient history.”
Bartlett
v. Strickland, 556 U.S. 1, 25 (2009) (per Kennedy, J.). 139
In North
Carolina, African Americans overwhelmingly vote for Democratic
candidates; for example, at the presidential level they voted 85%
for John Kerry in 2004 and 95% for President Obama in 2008.
Ex. 231 at 24.)
(Pl.
By contrast, 27% of white North Carolinians voted
for John Kerry in 2004 and 35% for President Obama in 2008.
(Id.)
That is, white support for the preferred candidate of African
Americans increased when there was an African American running for
President. (Id.) In 2008, President Obama carried North Carolina.
Defendants admit in their answer in case 1:13cv861 that “past court
decisions in the voting rights area speak for themselves and that
racially polarized voting continues to exist in North Carolina.”
(Doc. 19 at 13.)
The
court
finds
that
polarized
voting
between
African
Americans and whites remains in North Carolina, so this factor
favors Plaintiffs.
Plaintiffs have not presented any evidence
139
Justices Thomas and Scalia concurred in the judgment only, adhering
to their opinion that § 2 does not countenance vote dilution claims.
Bartlett, 556 U.S. at 1250 (Thomas, J., concurring in the judgment).
236
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regarding Hispanics and racially polarized voting.
(See, e.g.,
Pl. Ex. 231 at 20–26; Pl. Ex. 229 at 7–8.)
d.
Enhancing the Opportunity for Discrimination
The third Gingles factor has the court consider “the extent
to which the state or political subdivision has used unusually
large election districts, majority vote requirements, anti-single
shot provisions, or other voting practices or procedures that may
enhance the opportunity for discrimination against the minority
group.”
478 U.S. at 37.
Plaintiffs do not claim that any of these procedures are
currently used in North Carolina.
Rather, in support of this
factor, Plaintiffs refer to voting restrictions imposed in the
late nineteenth century, (Pl. Ex. 229 at 9); a poll tax that lasted
until 1920, (id.); a literacy test that is currently part of the
North Carolina State Constitution, though rendered unenforceable
by the VRA since 1965, (id. at 9-10); and various objection letters
issued by the DOJ when North Carolina was subject to § 5 preclearance, (id. at 10).
Plaintiffs also cite to various legal
decisions from the 1980s that collect this history.
128–29.)
Yet,
no
evidence
was
introduced
(Doc. 346 at
showing
how
these
discontinued practices have, or could have, interacted with SL
2013-381 to lessen minority opportunity to participate in the
political process.
Plaintiffs also argue that SL 2013-381 itself enhances the
237
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opportunity for discrimination because the eliminated mechanisms
“were
effective
tools
in
helping
to
reverse
the
disparities in registration and participation.”
persistent
(Id. at 129.)
Plaintiffs offered no such evidence in this case.
And, in any
event, that would be a rather circular method of employing the
Gingles factors.
This factor does not favor the Plaintiffs.
e.
Candidate Slating Process
The fourth Gingles factor asks, “if there is a candidate
slating process, whether the members of the minority group have
been denied access to that process.”
478 U.S. at 37.
This factor
does not appear to be relevant to any claim in this case, and, at
any rate, no evidence was offered on it.
f.
Continuing
Effects
Hindering Participation
of
Discrimination
The fifth Gingles factor, upon which Plaintiffs rely most
heavily, examines “the extent to which members of the minority
group in the state or political subdivision bear the effects of
discrimination in such areas as education, employment and health,
which hinder their ability to participate effectively in the
political process.”
478 U.S. at 37.
In essence, this requires Plaintiffs to show both that (1)
African Americans and/or Hispanics bear the effects of earlier
discrimination, and (2) that those effects presently hinder their
ability
to
participate
effectively
in
the
political
process.
238
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Defendants
contest
both
points.
In
support
of
their
claim,
Plaintiffs presented the following.
The evidence showed that African Americans and Hispanics are
more likely to be unemployed and more likely to be poor 140 than
whites. 141
For
the
third
quarter
of
2014,
10.3%
of
African
Americans and 8.1% of Hispanics were unemployed, compared to 5.3%
of whites.
(Pl. Ex. 229 at 11.)
Similarly, as of 2013, 27% of
African Americans and 43% of Hispanics were living below the
poverty line, compared to 12% of whites.
(Id.; see also Pl. Ex.
45 at 2, 6-7 (showing that African Americans and Hispanics are
disproportionately likely to be poor).)
These disparities are
expressed in a slightly different way in the following table:
Proportions of North Carolina’s Adult Poor by Race & Ethnicity
Race
or
Ethnicity
White
African American
Hispanic
Other
Total
Number
of
Adult Poor
559,397
351,262
144,942
69,777
1,125,378
Percent
of
Adult Poor
50%
31%
13%
6%
100%
Percent of Adult
Population
68%
21%
7%
4%
100%
140
The poor obtain income from multiple sources, including wages and
various welfare programs; there are “few racial differences in welfare
receipt.” (Pl. Ex. 45 at 14–15.)
141
With regard to those who are employed, Dr. Burden claimed that North
Carolina law does not require employers to give employees time off to
vote. For support, he cites a website of the League Plaintiffs. (Pl.
Ex. 229 at 12 & n.54.) However, Dr. Burden and the website both ignore
a North Carolina statute criminalizing retaliation against employees who
wish to vote.
See N.C. Gen. Stat. § 163-274(a)(6).
At least one
secondary source has specifically recognized this statute. See Eugene
Volokh, Private Employees’ Speech and Political Activity: Statutory
Protection Against Employer Retaliation, 16 Tex. Rev. L. & Pol. 295,
336–37 (2012).
239
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(Pl. Ex. 45 at 6–7.)
With
regard
to
transportation,
African
Americans
and
Hispanics are less likely than whites to have access to a vehicle.
Only 2.4% of whites live in homes without access to a vehicle,
compared to 10.7% of African Americans and 6.4% of Hispanics. (Id.
at 13-14.)
That disparity becomes larger among the poor, as 27%
of poor African Americans live in households without access to a
car, compared to 8.8% of poor whites.
(Id. at 14.)
As discussed above, African Americans and Hispanics are more
likely to move than whites.
(Id. at 17 (“For instance, 13.6 % of
non-Hispanic whites reside in a different house than they did last
year,
compared
to
18.5%
for
both
non-Hispanic
blacks
and
Hispanics.”); Pl. Ex. 46 at 52 (“[A]n average of 17.1% of blacks
moved within the state . . . compared to only 10.9% of whites.”).)
This
is
consistent
with
the
finding
that
minorities
are
disproportionately likely to be poor and the poor are more than
twice as likely to move as the non-poor.
(Pl. Ex. 45 at 17.)
African Americans and Hispanics in North Carolina also fare
worse than whites in terms of health outcomes.
(Pl. Ex. 229 at 11
(stating that 24% of African Americans and 29% of Hispanics have
“fair” to “poor” health, compared to 16% of whites in North
Carolina).)
Further, the poor in North Carolina are more likely
to be disabled, and among the poor, minorities are more likely to
240
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 246 of 485
be disabled.
(Pl. Ex. 45 at 2.)
African Americans and Hispanics are more likely to experience
disparate educational outcomes than whites.
Dr. Burden reported
that among the 2011-2012 cohort, high school graduation rates in
North Carolina were 85% for whites, 75% for African Americans, and
73% for Hispanics. 142
Allan
Lichtman,
(Pl. Ex. 229 at 12.)
Ph.D.,
Distinguished
Plaintiffs’ expert
Professor
of
History
at
American University, put these figures at 88.5% for whites and
80.9% for African Americans.
(Pl. Ex. 231 at 11.)
By age 25,
that gap narrows slightly, as 15.7% of African American North
Carolinians lack a high school degree, compared to 10.1% of whites.
(Pl. Ex. 45 at 10.)
African Americans and Hispanics also drop out
of school at higher rates and are suspended more frequently than
whites.
(Id. at 11.)
They also have lower scores in both reading
and mathematics on standardized tests.
(Pl. Ex. 229 at 11.)
Dr.
Burden notes that “educational attainment is often the single best
predictor of whether an individual votes.”
(Id. at 12.)
At trial, Dr. Clotfelter was tendered as an expert in the
history and economics of education in North Carolina.
He examined
142
The poor have less education than the non-poor, and African Americans
are more likely to be poor, but among the poor without college degrees,
there are no disparities by race. (Pl. Ex. 45 at 10–11.) As Cynthia
Duncan, Ph.D., a sociologist who studies poverty, testified at trial,
“[T]he educational achievement between [poor] blacks and whites only
differs statistically significantly at the college level.” (Doc. 337
at 93.)
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Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 247 of 485
disparities between African American and white students in North
Carolina in terms of educational resources and outcomes, past and
present.
(Doc. 330 at 127–28.)
The court finds him to be a
credible witness.
Dr. Clotfelter testified that historically North Carolina has
contributed to its educational disparities in the following ways:
slavery,
segregated
schooling,
and
purposeful
funding favoring whites during segregation. 143
differences
in
(See Pl. Ex. 237.)
Disparities in educational expenditures existed through at least
the
1950s,
although
by
some
metrics
earlier
disparities
had
reversed course; for example, African American teachers were more
highly paid than white teachers throughout the 1950s.
16.)
Compared
to
other
southern
States,
North
(Id. at 15–
Carolina
“comparatively progressive” in its educational expenditures.
was
(Id.
at 16.)
Nevertheless, disparities continue to the present day in
various ways.
Dr. Clotfelter found that disparities in education
funding have continued after the end of de jure segregation.
(Id.
143
Dr. Burden claims that North Carolina discriminates against minorities
through its criminal justice system.
(Pl. Ex. 229 at 13.)
His
observations about disparate prison statistics are not linked to
discrimination or to any proof of discriminatory law enforcement, nor
does he explain how such statistics interact with SL 2013-381. He also
charges
that
North
Carolina’s
felon
disenfranchisement
law
disproportionately affects African Americans, (id.), but he fails to
note that this law was passed by a bi-racial Republican Party as part
of an omnibus election bill designed to help African Americans vote.
Act of Mar. 8, 1895, ch. 159, § 13, 1895 N.C. Sess. Laws 211, 217; (Pl.
Ex. 230 at 9-11.)
242
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at 3-4.)
For example, he observes that a child’s educational
success correlates with his parents’ educational levels, which
tends to perpetuate historic patterns of official discrimination
even after official discrimination has ended.
(Id. at 6–12.)
An
achievement gap still persists in North Carolina, though this gap
compares favorably to the majority of other States.
(See, e.g.,
Def. Ex. 268 at 49–50.)
Therefore,
Plaintiffs
have
demonstrated
that
African
Americans and Hispanics in North Carolina are disproportionately
likely to move, be poor, less educated, have less access to
transportation, and experience poor health.
that
Hispanics
discrimination.
suffer
these
However,
as
there
a
was
There was no showing
result
a
of
showing
historical
that
the
socioeconomic disparities experienced by African Americans can be
linked to the State’s disgraceful history of discrimination.
That
history is more distant than it once was, and things have clearly
improved, but the effects of historical discrimination against
African Americans are assuredly linked by generations, and thus
achievement in education and wealth can be tied to the success of
one’s parents and grandparents.
Accordingly, this court finds
that African Americans experience socioeconomic factors that may
hinder
their
political
participation
generally.
This
is
consistent with the Senate Report itself, which contemplates that
socioeconomic
disadvantage
makes
political
participation
more
243
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difficult.
There are, however, questions as to how these socioeconomic
disadvantages endured by African Americans, which make political
participation more difficult as a general matter, make, or are
linked to making, it more difficult under SL 2013-381.
Is it
possible that if a State otherwise makes it easy enough to register
and vote, existing socioeconomic disparities in this 21st century
will prove immaterial?
If not, could African Americans ever have
had an equal opportunity prior to SL 2013-381, or in fact under
any voting system?
suggest
African
In addition, if socioeconomic disparities
Americans
will
have
a
more
difficult
time
participating, what is the court to make of the fact that African
American participation increased in 2014 under SL 2013-381? 144
Plaintiffs did not account for this last question, but they did
offer
several
witnesses
in
an
attempt
to
link
existing
socioeconomic disparities to the experience under SL 2013-381.
At trial, Plaintiffs presented Cynthia M. Duncan, Ph.D., a
sociologist who studies poverty.
Her testimony was credible but
144
White turnout still exceeded African American turnout in 2014 by .8%
(40.5% to 39.7%), but that represents the smallest midterm voting
differential for the years the court has been provided data. (Pl. Ex.
242 at 161 (App’x U).) The differential was 10.7% in 2006 (34.2% to
23.5%) and 3.4% in 2010 (39.6% to 36.2%) — when the removed mechanisms
were in place. (Id.) Of course, African American turnout exceeded white
turnout by 5.5% in 2008 (68.5% to 63%) and 6.8% in 2012 (67.2% to 60.4%).
(Id.)
244
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of limited helpfulness.
She analyzed poverty in North Carolina by
analyzing Census data for the State, 145 combined with information
she
gleaned
from
interviews
Carolinians of various races. 146
with
forty-seven
(Pl. Ex. 45 at 2.)
poor
North
Although Dr.
Duncan explored the facts of poverty in North Carolina with reports
from her interviews, she did not provide strong opinions on the
causes of poverty in North Carolina.
In fact, she explained about
poverty scholarship very generally: “Scholars now recognize that
larger structural factors such as discrimination, lack of jobs and
racial and class segregation are intertwined with cultural factors
such as failure to stay in school, having children young and out
of wedlock, or getting involved with drugs and criminal activity.”
(Id. at 3.)
In any case, she did not offer any quantitative
analysis on any interaction between voting under SL 2013-381 and
poverty.
(Doc 337 at 90–91.)
Plaintiffs presented the video deposition of Lynne VernonFeagans, Ph.D., a developmental psychologist and linguist tendered
as an expert in non-urban poverty in North Carolina.
She is the
principal investigator for the Family Life Project and analyzed
145
Many of the poverty statistics set forth above were provided by Dr.
Duncan.
146
The interviewees were not randomly selected. On cross-examination,
Dr. Duncan preferred not to disclose how the interviewees were selected
because her work was in conjunction with “some nonprofits” who helped
select the interviewees, (Doc. 337 at 94–96), and the court did not
require her to do so.
245
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its data to see whether African American families in the data set
would face greater obstacles “in meeting the requirements” of SL
2013-381 than non-African American adults in the study.
(Pl. Ex.
240 at 1, 4.)
The Family Life Project is a study of families living in three
rural
North
recruited
Carolina
into
the
counties.
project
upon
(Id.
at
8.)
the
birth
of
Families
were
a
(the
child
researchers visited hospitals every day) from fall 2003 to fall
2004.
(Id. at 8-9.)
Data were collected through interviews
conducted at eleven home visits over a seven-year period.
(Id. at
9.)
Based on her analysis of the project’s data, Dr. VernonFeagans opined that poor rural African American families were
poorer than poor rural non-African American families.
11.)
(Id. at
She also opined that the African American families she
studied
were
disproportionately
likely
to
experience
factors
preventing them from participating in “civic life.” (Id. at 5.)
These
include
less
access
to
transportation;
less
access
to
computers and internet services; non-standard work hours; racial
discrimination; and “a greater number of negative life events
(divorce, death in the family, major illness).”
(Id. at 5–6.)
They possessed demographic factors making participation in civic
life more difficult: “single parenthood, lower levels of literacy,
or multiple child care arrangements.”
(Id. at 6.)
They also
246
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experienced more instability in living conditions — “more frequent
residential moves” — and “less predictability in their daily lives”
than
non-African
American
families.
(Id.)
Ultimately,
she
concluded: “Together these multiple factors can disproportionately
hinder African American adults from participating in community
life and create barriers that can also prevent them from meeting
the
demands
of
North
Carolina
House
Bill
589.”
(Id.)
Specifically, she opined on what would be required of the studied
women “in order to obtain a valid picture ID, to vote in a correct
precinct, to come to a correct polling place during restricted
hours, and to register to vote 25 days before an Election.”
at 5.)
(Id.
She opined that the addition of the voter-ID requirement
and the elimination of early voting, SDR, OOP, and pre-registration
would make it harder for African American families to vote.
There
are multiple problems with her opinion.
First, her opinion is based on SL 2013-381’s version of the
photo-ID requirement, which has been significantly amended by SL
2015-103 and the reasonable impediment exception.
does not actually seem to understand SL 2013-381.
Second, she
It is unclear
what Dr. Vernon-Feagans meant by “restricted hours” since SL 2013381 has a same-hours requirement and the effect of increasing the
number
of
hours
available
for
each
day
of
early
voting
and
producing more convenient hours for lower-income persons.
Third,
Dr.
voting
Vernon-Feagans
has
never
studied
election
law,
247
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behavior, or political participation rates.
(Pl. Ex. 681 at 56.)
The data she analyzed to reach her opinions was not designed to
study any aspect of voting and includes no information about
political participation, including the acts of registering and
voting.
(Id. at 56-57.)
The court has no basis for believing
that Dr. Vernon-Feagans understood the law before or after SL 2013381, and therefore has no basis for accepting her opinions about
the “obstacles” imposed by the law.
dataset and opinions are limited.
Fourth, Dr. Vernon-Feagans’
Since she studied only rural
counties, her data cannot be extrapolated to urban areas.
Her
families also were a limited subset: single mothers 147 and their
children. 148
Fifth, Dr. Vernon-Feagans’ definition of “civic life” was
vague, meaning “activities that families may want to have access
to in their community.”
(Pl. Ex. 681 at 64.)
For her, this would
147
As Dr. Duncan explained, poverty is strongly correlated with marital
status, with the unmarried more likely to be poor than the married.
(Doc. 337 at 97–98.) This fact is true nationally. (Id. at 99.) No
Plaintiffs’ witness linked the burdens of this subset to official
discrimination.
148
(E.g., Pl. Ex. 681 at 44 (“[S]o if we’re looking at just poor families,
there were no differences between our African-American moms and our nonAfrican-American moms.”); id. at 48 (“So what we have here as far as
just comparing, again, African-American moms and non-African-American
moms overall . . . .”); id. at 54 (“So all of these things together [the
four provisions of SL 2013-381 she addressed] are going to make it harder
especially for the poor African-American moms, at least that’s what we
have here . . . .”) (emphasis added)); Pl. Ex. 509 (examining access to
vehicle for “all mothers” by race); Pl. Ex. 510 (examining access to
technology for “all mothers” by race); Pl. Ex. 511 (examining literacy
level for “mothers” by race); Pl. Ex. 512 (examining residential
instability for “mothers” by race).
248
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include
going
to
appointment.
a
parent-teacher
(Id. at 16.)
conference
or
a
doctor’s
It did not appear to focus on how a
citizen participates in and contributes to a political or social
community’s common welfare.
Cf. Webster’s Third New International
Dictionary 412 (1986) (defining civic to refer to activities
“forming
a
integration,
component
and
of
or
development
connected
of
a
with
civilized
the
function,
community
.
.
.
involving the common public activities and interests of the body
of citizens”).
Finally, Dr. Vernon-Feagans’ opinion was merely predictive,
it was not based on the actual registration and voting experiences
of any of the subjects of her study under SL 2013-381 or any other
voting procedure.
In other words, neither she nor Plaintiffs
presented any data on voter turnout and registration rates for her
project participants or for the studied counties more generally,
although such information is presumably available because the
participants
are
known
and
Plaintiffs
have
access
to
North
Carolina’s voter database. It is certainly available for the rural
areas studied.
In summary, the court finds Dr. Vernon-Feagans’
testimony of limited probative value.
Plaintiffs
presented
Gerald
Webster,
Ph.D.,
Professor
of
Geography at the University of Wyoming, as an expert in geography,
political geography, and spatial analysis.
Dr. Webster opined on
the effect of the elimination of OOP voting on North Carolina’s
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two largest counties, Wake and Mecklenburg.
(Pl. Ex. 241 at 2.)
There were a total of 842 OOP provisional ballots 149 cast in those
two counties in the 2014 general election.
(Id. at 43.)
Dr.
Webster examined the average distance between the precinct at which
each of these voters voted on Election Day and their assigned
precinct.
(Id.)
He found that, on average, an OOP voter in
Mecklenburg County voted at a precinct that was 6.6 miles away
from his or her assigned precinct; for Wake County, the average
was 6.8 miles.
(Id.)
Since African Americans disproportionately
cast OOP provisional ballots statewide, he assumed that African
Americans disproportionately cast the OOP provisional ballots from
Wake and Mecklenburg Counties. He therefore concluded that African
Americans, who tend to have less household vehicle access, were
disproportionately harmed by the elimination of OOP voting.
Dr. Webster’s opinion is limited.
(Id.)
He did not know the racial
breakdown of the OOP voters he studied, nor did he study the voting
history of any of the OOP voters (even though he was capable of
doing so).
(Doc. 334 at 190, 198.)
Further, he did not consider
whether these individuals had voted at the correct precinct in the
past, nor did he know why these individuals voted at the incorrect
precinct.
(Id. at 198-99.)
Most critically, he did not know
149
There were only 1,930 incorrect precinct provisional ballots cast on
Election Day in 2014. (Pl. Ex. 689.) Thus these 842 OOP provisional
ballots from two counties represent 43.63% of all such ballots.
250
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whether any individual’s correct precinct was closer to the voter’s
home or workplace, a key question in the burden analysis.
(Id. at
198.)
In contrast, Defendants offered the opinion of Dr. Hofeller,
who also studied the distance between the precinct where OOP voters
cast their ballot and their correct precinct.
(Def. Ex. 212A at
18-19.)
Hofeller
In
contrast
to
Dr.
Webster,
Dr.
statewide data and broke them down by race.
23.)
examined
(Id. at 18–19 & tbl.
He found that 60.3% of African American OOP voters cast a
ballot within five miles of their correct precinct.
(Id. at 18.)
By contrast, only 49.1% of white OOP voters cast a ballot within
five miles of their correct precinct.
(Id. at 18 & tbl.23.)
The court finds neither expert to provide very persuasive
evidence on the issue.
But Dr. Webster’s approach was myopic,
even relative to Dr. Hofeller’s.
Finally,
Plaintiffs
presented
the
testimony
of
Kathryn
Summers, Ph.D., a professor at the University of Baltimore, as an
expert in literacy and voter system usability.
She opined that SL
2013-381, especially the elimination of SDR, would burden low
literacy voters, of which a disproportionate share are African
American.
To reach her conclusion, Dr. Summers designed a usability
study in Baltimore, Maryland.
randomly
recruited
twenty
(Doc. 331 at 16.)
African
Dr. Summers non-
American,
low-literacy
251
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participants, all from Baltimore, except for one, who was from
Pennsylvania; some she recruited off the streets, others at a train
station.
(Id. at 38–39.)
and a half.
(Id.)
Each participant was paid $80 per hour
The participants were placed in a room with a
computer, and Dr. Summers sat with them.
(Id. at 39–40.)
She
then asked them to pretend they had just moved to North Carolina
and to pretend there was an upcoming election in which they wished
to vote, though no campaign issues were discussed.
(Id. at 40.)
The participants would then try to figure out how to register and
vote.
(Id. at 41-42.)
Dr. Summers would role play, pretending to
be someone at the SBOE, for example.
(Id.)
The problems with the study are myriad.
The most obvious is
that Dr. Summers was studying Marylanders, not North Carolinians.
Unsurprisingly,
low
literacy
residents
of
Baltimore
are
familiar with the electoral system of North Carolina. 150
not
Dr.
Summers admitted that she could have conducted her study in North
Carolina on actual North Carolinians, but choose not to do so
because
of
the
“time
frame
and
the
cost.”
(Id.
at
42.)
Additionally, she only studied twenty individuals and did not
employ any control group of average-literacy participants in order
150
An additional problem is that such Marylanders cannot be said to have
suffered from the effects of historical discrimination in North Carolina.
252
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to isolate the alleged impact of low literacy on voting. 151
(Id.
at 34.)
The
telling.
details
about
the
participants
themselves
are
most
Dr. Summers opined at trial: “Specifically, the thing
that would help — absolutely be most helpful above anything else
would be an opportunity to do same-day registration.”
31.)
(Id. at
But the question for the court is equality of opportunity,
and, interestingly, nineteen of the twenty participants in her
study were already registered Maryland voters.
(Id. at 45.)
Seventeen of the twenty had voted in the last midterm.
(Id.)
That
these low-literacy participants were able to register and vote
despite the fact that Maryland does not offer SDR significantly
undermines her opinion. (Id.) Dr. Summers did not explain whether
the other participants had in fact tried and failed to register or
vote in Maryland.
Dr. Summers also criticizes North Carolina’s registration
system because several of her participants struggled to register
to
vote
register.
in
North
Carolina
or
never
realized
they
needed
to
In particular, Dr. Summers criticizes the registration
form itself and how it can be accessed.
(Pl. Ex. 239 at 33–34.)
Of course, SL 2013-381 did not change (nor do Plaintiffs challenge)
151 Further, although of lesser importance, Dr. Summers pretended to mimic
various types of North Carolina government employees, but she had
absolutely no experience working in any of those roles or knew what they
provided. (Doc. 331 at 42-43.)
253
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the registration form - which is a simple, seven question, single
page document similar to the federal form.
(Doc. 341 at 159.)
Even after the elimination of SDR, a citizen may still register at
the CBOE and enlist the aid of staff.
One may also register by
mail and have a number of persons assist in completing the form.
Finally, one may register after the twenty-five day cut-off; that
registrant
just
cannot
simultaneously
vote
in
the
upcoming
election.
As Dr. Hood observes, it makes little sense for Dr. Summers
to assume that low-literacy citizens cannot figure out how to
register in time for an election but can figure out how to vote
early.
(Def. Ex. 268 at 52.)
Early-voting sites are less numerous
compared to precinct sites on Election Day, when interest in voting
peaks.
(Id.)
A registered voter can determine where to vote
because his precinct is listed on his voter registration card.
(Id.) By contrast, how would a motivated citizen with low literacy
be able to determine when and where to vote early if he cannot
figure out how to register on time? 152
The court does not accept
152
Dr. Thornton makes a similar point. To the extent low literacy voters
tend to be poor, they tend to include those who apply for government
benefits. Based on her expertise as a labor economist, she explained
the process and documentation needed for a person to apply for welfare
benefits. (Def. Ex. 309 at 49–52.) While the court sustains Plaintiffs’
objection to her testimony on any qualitative comparison of the
processes, it is commonsense that North Carolina’s one-page voter
registration form cannot seriously be more intellectually demanding than
that of gathering the relevant documents and applying for governmental
benefits. Dr. Summers, in response, admitted as much but explained that
254
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Dr. Summers’ conclusions.
She was not credible, and her opinions
are not well-founded.
Finally, on the issue of voter ID, Dr. Stewart presented
socioeconomic data related to his first no-match list.
(Doc. 408
and 53.) He analyzed the socioeconomic conditions of the zip codes
and
counties
in
disproportionately
which
live
individuals
and
on
found
the
no-match
that
they
list
were
disproportionately in areas with lower socioeconomic conditions.
(Pl. Ex. 242 at 52-54, 58.)
have
the
wealth,
income,
Because Dr. Stewart did not actually
or
educational
attainment
of
each
individual voter, he “imputed” the socioeconomic characteristics
of the voter’s ZIP code to each voter.
(Id. at 62 n.76.)
Based
on this analysis, he found that the median household income for
whites on the no-match list was $47,840, compared to $41,766
(- $6,074) for African Americans.
(Id. at 62 (tbl. 13).)
Per
capita income for whites on the no-match list was $25,305, compared
to $22,038 (-$3,267) for African Americans.
(Id.)
Median house
value was $114,222 for whites, compared to $99,055 (-$15,167) for
African Americans.
(Id.)
The percentage with at least some
college was 57.9% for whites, compared to 54.2% (-3.7%) for African
Americans.
(Id.)
low literacy voters can overcome the “complex and burdensome” welfare
application process because welfare tends to provide a greater level of
motivation than voting, whose benefits are “less tangible.” (Pl. Ex.
251 at 7.)
255
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Dr. Stewart’s data is of limited probative value for several
reasons.
First, it is based upon his first no-match list, which
contained 397,971 individuals.
(Id. at 38 (tbl. 7).)
His second
no-match list, which he relied upon at this court’s January trial
and described as his “best estimate,” contains 173,108 fewer
individuals.
(Pl. Ex. 891 at 19 (tbl. 11).)
Dr. Stewart did not
provide socioeconomic data for the no-match list on which he
actually relies.
Second, while his analysis shows socioeconomic
disparities, Plaintiffs failed to show that these disparities
would
make
it
materially
more
reasonable impediment exception.
difficult
to
vote
under
the
Plaintiffs did not offer expert
opinion establishing what level of literacy is necessary to acquire
ID at the DMV or to complete the reasonable impediment process.
Thus, Dr. Stewart’s finding that 3.7% more whites on the no-match
list
have
helpful.
“some
college”
than
African
Americans
is
not
very
Surely, someone with far less than “some college” could
vote under the reasonable impediment exception, particularly in
light of the substantial assistance available. Third, and finally,
Dr. Stewart did not offer any opinion on the burden that remains
after the enactment of the reasonable impediment exception.
408 at 59.)
(Doc.
Accordingly, his analysis fails to consider whether
the reasonable impediment exception ameliorates any alleged burden
that may have been imposed by SL 2013-381’s photo-ID requirement,
much less proves otherwise.
256
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In sum, Plaintiffs established that some segment of the
State’s African Americans endure socioeconomic disparities that
can be linked to State discrimination and this may make it more
difficult for them generally to participate in any electoral
system.
Plaintiffs, however, failed to show that such disparities
will have materially adverse effects on the ability of minority
voters to cast a ballot and effectively exercise the electoral
franchise after SL 2013-381 within the multitude of voting and
registration options available in the State, especially given that
the 2014 turnout data show increased participation among African
Americans under SL 2013-381.
See Salas, 964 F.2d at 1556 (finding
that “the high incidence of Hispanic registration in the District
is persuasive evidence that Hispanic voters are not deterred from
participation in the political process because of the effects of
prior discrimination, including unemployment, illiteracy, and low
income”).
For these reasons, this factor only favors Plaintiffs
in a general and limited way.
g.
Racial Appeals in Campaigning
The sixth Gingles factors asks “whether political campaigns
have been characterized by overt or subtle racial appeals.”
478
U.S. at 37. Plaintiffs presented relatively little recent evidence
257
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on this factor. 153
(Pl. Ex. 46 at 53; Pl. Ex. 238 at 17-19; Pl.
Ex. 230 at 34.)
The evidence that was presented was often
disconnected from actual campaigning. (See, e.g., Pl. Ex. 238 at
17 (Western Carolina University student’s looped sign around neck
of dead black bear cub); 17-18 (self-proclaimed patriot from Duplin
County strung up effigies of President Obama and other State
political leaders).)
Nevertheless, Plaintiffs did present one
undeniable racial appeal that is quite recent.
34.)
(Pl. Ex. 230 at
In 2010, the North Carolina Republican Party’s Executive
Committee distributed a mailer in which an incumbent Democrat was
portrayed wearing a Sombrero with his skin darkened by photo
editing. (Id.) The mailer had the Democratic candidate exclaiming
“Mucho
taxo,”
an
apparent
reference
claimed were driving away jobs.
(Id.)
to
policies
Republicans
However, the passage and
enforcement of SL 2013-381 was not and has not been marked by
subtle or overt racial appeals.
Even considering the 2010 incident, and even if the acts of
153
Plaintiffs point to one ad from Governor McCrory’s gubernatorial
campaign in 2012. In that ad, former sheriff of Wilson County, Wayne
Gay, stated “Once a sheriff, always a sheriff. Once a Democrat, always
a Democrat. Never voted any other way. Until now. North Carolina is
a mess. Not getting better. Our only hope is Pat McCrory. Outsider.
Fresh blood. Did great as mayor of Charlotte. He’ll do great for our
state. Or I’ll hunt him down.” Mark Binker, Black Caucus head criticizes
McCroy ad featuring former sheriff, WRAL.COM (Sept. 25, 2012),
http://www.wral.com/news/state/nccapitol/blogpost/11587710/.
Plaintiffs claim that Gay’s statement that “[o]ur only hope is Pat
McCrory” begs the question of who is “our.” (Pl. Ex. 238 at 18-19.)
Plaintiffs have failed to show that “our” means anything other than North
Carolina voters generally.
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Jesse Helms while running for senator in 1990 can be considered
recent racial appeals, (Pl. Ex. 238 at 10-16), SL 2013-381 does
not meaningfully interact with any of the alleged racial appeals
to affect minority political participation.
This factor and the
scant anecdotal evidence offered in support of it are not very
probative here.
Veasey, 796 F.3d at 511 (finding evidence of
racial appeals “not highly probative here,” noting “it is not clear
how such anecdotal evidence of racial campaign appeals combines
with
[the
law]
to
deny
or
abridge
the
right
to
vote”).
Accordingly, this court finds that this factor does not favor the
Plaintiffs.
h.
Minority Electoral Success
Under § 2, the “extent to which members of a protected class
have been elected to office in the State or political subdivision
is one circumstance which may be considered” among the totality of
the circumstances.
at 37.
52 U.S.C. § 10301(b); accord Gingles, 478 U.S.
However, neither this factor nor any other provision of
the VRA “establishes a right to have members of a protected class
elected in numbers equal to their proportion in the population.”
52 U.S.C. § 10301(b).
Plaintiffs argue that African Americans and Hispanics are
underrepresented in elected offices in North Carolina, compared to
their proportion of the population.
They acknowledge that African
Americans have recently approached parity with whites, though
259
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Hispanics remain underrepresented.
In
North
Carolina’s
General
(Pl. Ex. 229 at 14.)
Assembly,
there
are
eleven
African American members of the Senate (22% of the Senators) and
twenty-three members of the House (19% of the Representatives).
(Id.; Pl. Ex. 682.) Plaintiffs note that earlier, in 1989, African
Americans constituted only 8% of the Senate’s members and 11% of
the House’s members.
(Pl. Ex. 229 at 14.)
Among North Carolina’s
elected constitutional members of the executive branch, there has
only been one African American in North Carolina history.
(Id.)
Among North Carolina’s congressional delegation, two members (15%)
are African American.
(Id.)
Plaintiffs’ evidence further showed
that African Americans constitute the following proportions of
other elected offices: 19.4% of the State’s superior court judges;
23.8% of school board seats; and 12% of sheriffs.
In
response,
constitute
62.5%
Defendants
of
the
note
Democratic
that
(Pl. Ex. 682.)
African
Senators
and
Americans
50%
of
the
Democratic Representatives. (Def. Ex. 268 at 47.) Moreover, after
SL 2013-381 was enacted, and under a Republican redistricting plan,
the House gained an additional African American member.
at 127–28, 144.) 154
(Doc. 331
Among the State’s congressional delegation,
African Americans represent two of the three Democratic-controlled
House districts.
(Def. Ex. 268 at 47.)
In 2014, at the county
154
As noted above, North Carolina’s redistricting scheme is currently
subject to three lawsuits. See cases cited supra note 138.
260
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level, African Americans held 19% of the total commissioner seats.
(Id.)
Regarding Hispanics, there is one member of the Senate and
one of the House.
(Id. at 48.)
Therefore, compared to their
shares of the registered voters in North Carolina and of the
citizen
voting
age
population,
Hispanics
are
only
slightly
underrepresented in the North Carolina General Assembly.
(Id. at
47–48 (“As of 2014, Hispanics comprised 2.7% of the citizen voting
age population and 1.9% of the registrant population in North
Carolina.”).)
In
sum,
while
underrepresented
in
electoral
success,
approaches
parity
minorities
North
have
Carolina,
historically
today
African
of
State-wide
at
least
outside
with
their
prevalence
in
the
been
American
races,
electorate.
Hispanics remain underrepresented, but only slightly so in the
General Assembly.
Based on this evidence, and given that § 2 does
not give minorities any claim to proportional representation, to
the extent that this factor favors Plaintiffs, it does so only
weakly.
i.
Responsiveness of Elected Officials
The eighth Gingles factor asks “whether there is a significant
lack of responsiveness on the part of elected officials to the
particularized needs of the members of the minority group.”
478
U.S. at 37.
261
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Plaintiffs
disparities
suggest
between
responsiveness.
that
whites
any
and
lingering
minorities
(Doc. 346 at 6–7.)
socioeconomic
proves
a
lack
of
Plaintiffs point to no State
policy for this assertion. If a significant lack of responsiveness
can
be
established
by
pointing
to
socioeconomic
disparities
generally, without accounting for specific State policies, then
every
State
would
be
significantly
unresponsive
socioeconomic disparities are unfortunately widespread.
because
The court
finds Plaintiffs’ reliance on other Gingles factors unpersuasive
evidence on this factor.
Plaintiffs also assert that the enactment of SL 2013-381
demonstrates a lack of responsiveness.
(Doc. 346 at 129.)
Citing
Veasey, 796 F.3d at 511, they argue that legislators enacted SL
2013-381 by refusing to consider ameliorative amendments offered
by the Democratic opponents of the bill.
(See id. at 52, 129.)
This, of course, overlooks that Republican supporters of the bill
accepted the same-hours amendment, a central aspect of the new
early-voting schedule, from a Democratic Senator who opposed all
of SL 2013-381.
curbside
voters
Plaintiffs also ignore that SL 2013-381 exempts
(of
which
African
Americans
make
up
a
disproportionate share, (Doc. 332 at 110–12)) from compliance with
the photo-ID requirement by permitting them to vote with certain
documents showing their name and address, such as a utility bill.
N.C. Gen. Stat. §§ 163-166.12(a)(2), 163-166.13(a)(1).
262
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The
court
declines
to
infer
a
significant
lack
of
responsiveness on this record, especially where there is evidence
of
historical
policy
disagreements
on
several
provisions.
Moreover, besides this law, Plaintiffs have failed to point to any
specific “particularized” need of African Americans and Hispanics
in North Carolina about which the State has been unresponsive.
Indeed,
Dr.
Leloudis,
when
pressed
at
trial,
was
unable
to
articulate anything the General Assembly needed to do to be more
responsive to the needs of minorities, other than a generalized
statement of “equitable inclusion in the political process.” (Doc.
338 at 47.)
j.
Tenuousness of the State’s Justifications
The last Gingles factor requires the court to assess “whether
the policy underlying the state or political subdivision’s use of
such voting qualification, prerequisite to voting, or standard,
practice or procedure is tenuous.”
generally
defined
as
“having
478 U.S. at 37.
little
substance
or
Tenuous is
strength.”
Webster’s Third New International Dictionary 2357 (1986).
In
LUCLAC, the Fifth Circuit defined a non-tenuous law within the
context
of
the
VRA
as
discriminatory intent.”
one
that
is
“not
999 F. 2d at 870.
a
pretext
masking
When “determining
whether a § 2 violation has occurred,” the Supreme Court has held,
“[a] State’s justification for its electoral system is a proper
factor for the courts to assess.”
Houston Lawyers’ Ass’n, 501
263
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U.S. at 426–27; see also LULAC, 999 F.2d at 871 (“The weight, as
well as tenuousness, of the state’s interest is a legitimate factor
in analyzing the totality of circumstances.”).
Each provision of
the law will be addressed in turn.
i.
Voter ID
The stated purpose of North Carolina’s voter-ID law is to
ensure that the in-person voter and the registrant are the same
person.
2013 N.C. Sess. Law 381, preamble (“An Act . . . to
provide photo identification before voting to protect the right of
each
registered
voter
to
cast
a
secure
vote
with
reasonable
security measures to confirm voter identity as accurately as
possible without restriction”).
Because North Carolina does not
require the address on a voter’s ID to match the address of
registration, the voter-ID law is exclusively designed to prevent
in-person voter impersonation fraud.
Nineteen States currently have some form of a photographic
identification requirement for voting.
(Def. Ex. 270 at 17.)
At
the time North Carolina enacted its voter-ID requirement, the
Supreme Court had upheld a challenge to Indiana’s ID law in
Crawford. In Crawford, the Supreme Court found that Indiana’s
photo-ID
law
furthered
the
State’s
legitimate
interest
in
modernizing elections, deterring voter fraud, and safeguarding
voter confidence in the integrity and legitimacy of elections.
553 U.S. at 192-97.
The legislative history of SL 2013-381 and
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the law itself indicate that the North Carolina General Assembly
sought to achieve these same ends.
(Pl. Ex. 549 at 2-4 (“North
Carolina is one of the last in the Southeast to introduce [photo
ID] for honesty and integrity in the electoral process and we
believe it will go a long way to building confidence back in our
voters and our citizens.”)); 2013 N.C. Sess. Law 381 (stating that
its purpose was “to protect the right of each registered voter to
cast a secure vote with reasonable security measures that confirm
voter identity as accurately as possible without restriction”);
2015 N.C. Sess. Law 103 (stating that its purpose was to “authorize
voters who suffer from a reasonable impediment preventing the voter
from
obtaining
photo
identification
to
complete
reasonable
impediment declarations when voting”).
Plaintiffs
argue
that
there
was
impersonation fraud in North Carolina.
no
evidence
of
voter
The same can be said of
Indiana - there being no evidence of in-person voter impersonation
fraud occurring at any time in its history, yet the Supreme Court
recognized in Crawford that voter fraud has occurred in other
jurisdictions and that “not only is the risk of voter fraud real
but . . . it could affect the outcome of a close election.”
U.S. at 194-96.
553
In reaching its conclusion, the Court in part
relied upon the findings and recommendations of the Commission on
Federal Election Reform.
See id. at 193-97.
In 2005, the Commission on Federal Election Reform, chaired
265
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by President Jimmy Carter and former Secretary of State James A.
Baker, III, recommended that States implement “a uniform system of
voter identification” as one of its five pillars of “modernizing”
and “[b]uilding confidence in U.S. elections.”
See Commission on
Federal Election Reform, Building Confidence in U.S. Elections iv
(Sept. 2005) (hereinafter, “Carter-Baker Report”).
Even though
the Commission found that there was not “evidence of extensive
fraud in U.S. elections or of multiple voting,” it found that such
fraud does occur and that “it could affect the outcome of a close
election.”
Id. at 18.
The Commission reasoned that “[t]he
electoral system cannot inspire public confidence if no safeguards
exist to deter or detect fraud or to confirm the identity of
voters.”
Id.
Likewise, the Commission recognized that changes in
American life require our electoral systems to be modernized.
In the old days and in small towns where everyone knows
each other, voters did not need to identify themselves.
But in the United States, where 40 million people move
each year, and in urban areas where some people do not
even know the people living in their own apartment
building let alone their precinct, some form of
identification is needed.
Id.
Despite the bipartisan Commission’s finding that ID is needed
and the Supreme Court’s ruling that photo ID serves legitimate
interests, Plaintiffs nevertheless claim that North Carolina’s
voter-ID requirement is tenuous.
Plaintiffs do not hide the fact
that this is in essence a challenge to Crawford itself.
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In support, Plaintiffs presented Lorraine Minnite, Ph.D.,
Associate Professor of Public Policy and Director of the Urban
Studies
Program
Administration
at
in
the
Rutgers
Department
of
Public
University,
who
asserts
Policy
that
and
voter
impersonation fraud “has been statistically nonexistent in North
Carolina since 2000.”
(Doc. 409 at 21.)
Between 2000 and 2014,
Dr. Minnite found, the SBOE had only referred two cases of voter
impersonation to district attorneys.
(Id. at 20.)
There is no
evidence that either of these referrals resulted in a prosecution
or conviction.
(Id. at 21.)
made since 2014.
Two additional referrals have been
(Doc. 410 at 138-39.)
These referrals remain
pending, but no charges had been filed at the time of this court’s
January trial. (Id.) Even Dr. Minnite conceded at trial, however,
that the risk of voter fraud is “real in the sense that it could
happen” and while “[t]here is no evidence of extensive fraud in
U.S. elections or of multiple voting, . . . both occur and it could
affect the outcome of a close election.”
(Doc. 337 at 49-51.)
She nevertheless discounts it, however, “in the sense that it
likely happens.”
(Id. at 49.)
But even if there is no evidence of voter impersonation fraud
in
North
argument.
Carolina,
there
are
two
problems
with
Plaintiffs’
The first is that the signature attestation process
that North Carolina relied on prior to its ID law provided poll
workers with limited tools to detect fraud.
Dr. Minnite lauded
267
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signature attestation as a “very good system because a signature
is a biometric identifier.”
(Doc. 409 at 37.)
The problem is
that poll workers did not have access to voter’s signatures so
that a comparison could be made.
(Doc. 414 at 123-24.)
Unless
the poll book indicated that someone had already voted under the
name provided, (see Doc. 410 at 90), the only way the poll worker
could recognize an impersonator was if they either knew the person
presenting or knew the person whose name was provided, (see Doc.
414 at 123-24).
This of course assumes a small world that, as the
bipartisan Commission recognized, no longer exists.
Report, at 18.
Carter-Baker
Back when all voting occurred on Election Day at
precincts with small numbers of voters, poll workers’ knowledge of
the community may have been sufficient to meaningfully guard
against impersonators.
See id.
But as precincts have become
larger and early voting at centralized locations has become more
pervasive,
the
risk
that
voter
fraud
may
go
undetected
has
increased.
(See Pl. Ex. 983 at 63 n.91 (Government Accountability
Office report, stating that “[l]ike other crimes, instances of inperson voter fraud may occur that are never identified by or
reported to officials.
This is due, in part, to challenges
associated with identifying this type of fraud, as both successful
fraud and deterred fraud may go undetected.”).)
Second, and most significantly, Crawford found photo ID to
serve legitimate State interests even though there was “no evidence
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of
any
[in-person
voter
impersonation]
Indiana at any time in its history.”
actually
occurring
553 U.S. at 195.
in
The only
plausible reading of Crawford is that there need not be evidence
of voter impersonation within a State for that State to have a
legitimate interest in having a photo-ID requirement.
See id. at
192-97.
It is clear from Dr. Minnite’s testimony that she simply
disagrees with the Supreme Court.
She did not even reference
Crawford in her report, instead citing a Missouri Supreme Court
case predating Crawford.
(Doc. 337 at 47-48; Pl. Ex. 232 at 20.)
At the July trial in this case, she testified that the United
States Supreme Court’s discussion of fraud “doesn’t constitute an
informed opinion or an informed knowledge about voter fraud”
because “it doesn’t sort of meet my standards of having a correct
understanding about the evidence.”
(Doc. 337 at 48.)
Further, at
trial in January, despite recognizing that Crawford is still good
law, Dr. Minnite explained that she views circumstances since
Crawford as having cast a “pall over [it] as being something that
we would cite to.”
(Doc. 409 at 24.)
Principally, Dr. Minnite
pointed to a change of position by Judge Richard Posner of the
Seventh Circuit Court of Appeals, who drafted that court’s majority
opinion that was affirmed by the Supreme Court in Crawford.
at 25.)
(Id.
After the Seventh Circuit upheld Wisconsin’s voter-ID law
in Frank v. Walker, 768 F.3d 744 (7th Cir. 2014), Judge Posner
269
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requested a vote on whether to rehear the case en banc.
Walker, 773 F.3d 783, 783 (7th Cir. 2014).
denied by an equally divided court.
Id.
Frank v.
Rehearing en banc was
In his dissent from the
denial of rehearing en banc, Judge Posner asserted that Wisconsin’s
interest in deterring fraud was insufficient to justify the burden
imposed by the ID requirement.
Id. at 788, 797.
This opinion was
in part based on Judge Posner’s finding that “voter-impersonation
fraud is essentially non-existent in Wisconsin.”
Id. at 788.
Dr.
Minnite testified that she found Judge Posner’s reasoning to imply
that he believes Crawford was wrongly decided, but Judge Posner
stops short of saying so.
See id. at 784-86.
In fact, Judge
Posner went to significant lengths to distinguish Crawford.
Id.
In his view, the structure of Wisconsin’s ID law was likely to
place a heavier burden on voters than the Indiana law that was
sustained in Crawford.
Id.
There are significant problems with Dr. Minnite’s reliance on
Judge Posner’s dissent.
First, to the extent that Judge Posner’s
views were shaped by the specific stringency of Wisconsin’s ID
requirement,
North
Carolina’s
reasonable
impediment
exception
makes its ID requirement less burdensome than either Indiana’s or
Wisconsin’s – a fact that Dr. Minnite does not address.
at 784-85; (Doc. 409 at 24-26).
See id.
Although indigent Indiana voters
were permitted to vote without an ID so long as they completed an
affidavit
confirming
their
identity
and
indigence,
neither
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Indiana’s nor Wisconsin’s ID laws had a reasonable impediment
exception.
See Frank, 773 F.3d at 784-86.
Second, and most
obviously, Judge Posner’s views did not prevail, and Frank remains
good law in the Seventh Circuit.
See Frank, 768 F.3d 744.
Third,
while Judge Posner’s views may shape the Supreme Court’s approach
in a future case, Crawford remains the law of the land and is
binding on this court.
Plaintiffs next assert tenuousness on the ground that North
Carolina’s photo-ID law does not apply to absentee mail voting.
According to Dr. Burden, voter fraud is more likely to occur with
absentee mail voting than with in-person voting.
55.)
(Doc. 407 at 54-
Dr. Burden thus reasoned that if North Carolina was truly
concerned with voter fraud, it would apply its photo-ID requirement
to absentee mail ballots rather than in-person voting.
100-01.)
(Id. at
Dr. Burden’s testimony did not provide clarity on how
practical it would be to require photo ID of absentee mail voters.
He did, however, claim that his home state of Wisconsin requires
absentee mail voters to show photo identification.
(Id. at 101.)
This is true, but not entirely accurate.
Wisconsin requires individuals requesting absentee ballots to
present photo ID by mailing “in a photocopy of an acceptable photo
ID with his or her request.”
Frank v. Walker, 17 F. Supp. 3d 837,
844 (E.D. Wisc. 2014) (citing Wis. Stat. §§ 6.86(1)(ar), 6.87(1),
6.87(1)), rev’d on other grounds, 768 F.3d 744 (7th Cir. 2014).
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This requirement, however, does not apply every time the voter
casts an absentee mail ballot.
See id.
Wisconsin’s photo-ID
requirement does not apply to “absentee voters who have previously
supplied acceptable photo IDs and whose names and addresses have
not changed.”
Id. (citing Wis. Stat. § 6.87(4)(b)).
Nor does it
apply to absentee voters who are in the military or oversees, or
those “who are elderly, infirm, or disabled and indefinitely
confined to their homes or certain care facilities.”
Id. (citing
Wis. Stat. §§ 6.87(1),(3), 6.86(2), 6.875). Indeed, if Wisconsin’s
photo-ID requirement applied to every absentee voter every time he
voted, the law might be even more burdensome on voters.
Posner concluded as much in his dissent in Frank.
Judge
773 F.3d at 785
(finding that the law’s application to absentee voters as one
reason for it being more burdensome that the Indiana law upheld in
Crawford).
In any case, Indiana’s exception for absentee mail
voters did not prevent the Supreme Court from finding that its
photo-ID law served legitimate State interests.
Crawford, 553
U.S.
(Scalia,
at
185-86,
concurring)
192-97;
(“That
the
see
also
State
id.
at
accommodates
209
some
J.,
voters
by
permitting (not requiring) the casting of absentee or provisional
ballots, is an indulgence—not a constitutional imperative that
falls short of what is required.”).
States sometimes tread a difficult path, as they balance their
interest in secure elections with protecting a voter’s right to
272
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participate equally.
The balancing act inherent in determining
which requirements to impose and which to omit is why legislatures
are given substantial leeway in determining when and how to address
and remedy various challenges.
Cf. Williamson v. Lee Optical of
Okla., Inc., 348 U.S. 483, 489 (1955); Common Cause/Georgia v.
Billups, 504 F. Supp. 2d 1333, 1381-82 (N.D. Ga. 2007) (“[T]he
legislature has wide latitude in determining the problems it wishes
to address and the manner in which to address them (quoting Indiana
Democratic Party v. Rokita, 458 F. Supp. 2d 775, 829 (S.D. Ind.
2006)), vacated on other grounds and order reentered, 554 F.3d
1340 (11th Cir. 2009).
Moreover, while certain mechanisms may be more secure than
others, SL 2013-381 and SL 2015-103 raised the security of both
in-person and absentee mail voting. As noted above, North Carolina
relied upon a system of signature attestation for in-person voting
prior to SL 2013-381.
(Doc. 410 at 83.)
For voter impersonation
fraud to occur, the impersonator only needed to acquire the voter’s
name and address of registration.
(Doc. 410 at 89-90.)
Both of
these pieces of information — plus the voter’s registration status,
county of registration, and polling location — can be acquired by
using the “NC Public Voter Search” feature on the SBOE’s Website.
NC
Public
Voter
Search,
N.C.
State
https://enr.ncsbe.gov/voter_search_public/
11, 2016).
Bd.
(last
of
Elections,
visited
April
The impostor also had to sign an ATV form attesting to
273
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his or her identity and address under penalty of perjury, (Doc.
410 at 83), but poll workers did not have the voter’s registration
signature to compare with the impostor’s signature, (Doc. 414 at
123-24).
After SL 2013-381 and SL 2015-103, the at least 96.5% of North
Carolinians who have a qualifying photo ID will be required to
present it in order to vote in person.
11).)
Curbside
voters,
although
(Pl. Ex. 891 at 19 (tbl.
exempt
from
the
photo-ID
requirement, must still present either a qualifying photo ID or a
HAVA document bearing the voter’s name and address.
N.C. Gen.
Stat. §§ 163-166.13(a)(1), 163-166.9, 163-166.12(a).
Those who
have an impediment to acquiring qualifying ID must, in addition to
attesting to their identity and address, provide a HAVA document,
their registration card, or their date of birth and SSN4.
§ 163-166.15(c).
Id.
Therefore, even if an impostor seeks to use the
reasonable impediment exception to commit fraud, he will at least
need
to
acquire
an
acceptable
HAVA
document,
the
voter’s
registration card, or two pieces of personal information on the
voter: the voter’s date of birth and SSN4.
Id.
Session Law 2013-381 also raised the security of absentee
mail ballots. To request an absentee ballot today, absentee voters
must provide either (1) their driver’s license, learner’s permit,
or provisional license number; (2) their special identification
card for nonoperators card number; or (3) their SSN4.
N.C. Gen.
274
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Stat. § 163-230.2(a)(4).
SL 2013-381. 155
This requirement did not exist prior to
See 2013 N.C. Sess. Law 381, § 4.3.
In addition,
absentee mail voters must complete their ballot and the absentee
process in the presence of two witnesses who are at least eighteen
years of age.
must
provide
perjury.
N.C. Gen. Stat. § 163-231(a).
their
name,
address,
and
Id.; (see also Doc. 410 at 101).
sign
The two witnesses
under
penalty
of
In the alternative to
the two-witness requirement, absentee voters may have their ballot
witnessed by a notary public.
N.C. Gen. Stat. § 163-231(a).
Prior
to SL 2013, the absentee mail voting process only required one
witness.
2013 N.C. Sess. Law 381, § 4.4; (see also Doc. 410 at
101).
In sum, despite making significant accommodations for voters,
SL 2013-381 and SL 2015-103 nevertheless raised the level of
security for both in-person and absentee mail voting.
This has
provided poll workers and CBOEs with a larger toolset with which
to detect and deter voter fraud.
law
is
not
tenuous
and
Accordingly, North Carolina’s ID
serves
legitimate
State
interests
155
Both before and after SL 2013-381, voters who “registered to vote by
mail on or after January 1, 2003, and [have] not previously voted in an
election that includes a ballot item for federal office in North
Carolina” must, “in order to cast a mail-in absentee vote,” provide
either (1) a valid photo-ID or (2) a HAVA document. N.C. Gen. Stat.
§ 163-166.12(b). This requirement, however, only applies to those who
register by mail and who have not voted previously in certain elections.
See id.
The requirements of N.C. Gen. Stat. § 163-230.2(a)(4) apply
each time an absentee ballot is requested and regardless of the method
of registration.
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articulated by the Supreme Court in Crawford.
ii.
Early Voting
Plaintiffs contest the General Assembly’s justifications for
reducing the number of early-voting days from seventeen to ten.
The General Assembly made a number of alterations to early
voting with SL 2013-381.
While deciding to reduce the early-
voting period to ten days, it still required that CBOEs offer the
same number of aggregate hours of early voting as offered in 2010
for future non-presidential elections and as offered in 2012 for
presidential elections.
N.C. Gen. Stat. § 163-227.2(g2).
The
General Assembly also permitted counties to seek a waiver from the
aggregate-hours requirement but required a unanimous vote in favor
of the waiver from a bipartisan CBOE and a bipartisan SBOE.
§ 163-227.2(g3).
Id.
Considered together, a reduction in hours can be
obtained only if there is agreement among five members of the
majority party and three members of the minority party.
Stat. § 163-19.
vetoed.
N.C. Gen.
If there is any dissent, the waiver request is
(See Doc. 340 at 204–05.)
Moreover, while both before
and after SL 2013-381, a CBOE could, by unanimous vote of its three
members, open additional early-voting satellite sites, N.C. Gen.
Stat. § 163-227.2(g), SL 2013-381 ensured greater uniformity, and
perhaps fairness, by requiring that every satellite site “provide
for the same days of operation and same number of hours of
operation on each day for all [satellite] sites in that county for
276
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that election,” id.
Defendants offered multiple justifications for the changes to
the early-voting schedule.
early
voting,
even
Proponents of the reduction of days of
before
the
same-hours
requirement
was
introduced, stated an intent to free up resources so that CBOEs
could offer more early-voting sites across each county.
(See,
e.g., Pl. Ex. 202 at 31–32 (“[T]here is some savings in [the
removal of the seven days] to open up additional sites . . . [y]ou
don’t have to go across town if it’s not in your neighborhood.”);
Pl. Ex. 549 at 2–8.)
Proponents expressed a concern that the first
seven days of early voting were the least used days, (Pl. Ex. 202
at 31), which was also true.
early-voting
sites
had
There was also a stated concern that
been
located
based
on
political
gamesmanship, so that having more sites spread more evenly across
counties, open for longer hours, would negate this influence.
(See, e.g., Pl. Ex. 202 at 31–32, 75; Pl. Ex. 549 at 2–8; Pl. Ex.
550 at 55–57.)
This was a legitimate concern.
(See, e.g., Def.
Ex. 212A at 14–16, 19 (finding that the placement of and hours
offered
for
Republicans).)
early-voting
sites
favored
Democrats
over
In fact, as part of the SBOE’s 2008 report on SDR,
former SBOE Director Gary Bartlett, a twenty-year veteran SBOE
Executive Director and Democratic appointee, recommended that the
legislature “[d]evelop an equitable plan to allot county one-stop
sites that diffuses any claims of partisanship.”
(Pl. Ex. 56 at
277
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7.)
However, while SL 2013-381 mandated uniformity in the hours
of
satellite
early-voting
sites,
without
the
same-hours
requirement the increase in the early-voting sites would have been
entirely
at
the
discretion
of
each
CBOE.
Senator
Stein,
a
Democrat, proposed the same-hours amendment, which he believed
would compel CBOEs to offer more early-voting sites and extended
hours.
(Pl. Ex. 549 at 16–18; Pl. Ex. 550 at 11.)
He said on the
floor of the Senate, “So if you all want to ensure that the citizens
of this state have the same access to early voting that they have
today with ten days as they have for seventeen days, you will
support this amendment and I encourage you to do so.”
549 at 17.)
(Pl. Ex.
The proponents apparently agreed with Senator Stein
that they wanted to ensure the same amount of access to early
voting, while also increasing the convenience of early voting for
each day of the early-voting period, because the amendment passed
by a vote of forty-seven to one.
(Id. at 49.)
And, in fact, the modified early-voting schedule worked just
this way: in 2014, not only were there more early-voting sites
than in 2010, the previous midterm, but even more than in 2012,
the previous presidential election.
06.)
(See, e.g., Doc. 340 at 205–
There were also new, more convenient hours offered outside
the typical 9 a.m. to 5 p.m. window.
(See id.; Doc. 335 at 80;
Def. Ex. 13; Pl. Ex. 242 at 167–68.)
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Plaintiffs frame the law as no more than a thinly-veiled
effort to provide less access to the polls by reducing the number
of days of early voting.
But this oversimplifies the nature of
the changes in the law.
Without the same-hours amendment, the
court
may
well
particularly
as
have
had
early
serious
voting
concerns
appears
popularity among the electorate.
to
about
have
the
change,
gained
growing
However, the new law offers the
same aggregate hours as before; provides for more polling places
rather than fewer, so that different parts of a county are more
equally served; establishes longer, more convenient hours of early
voting for each day of early voting, to accommodate typical work
schedules; and promotes bipartisanship in the placement and hours
of early-voting sites.
It does this by reallocating the resources
devoted to the first seven days of early voting — those farthest
from Election Day and the least popular period of early voting.
In a world of budgets and limited resources, the General Assembly’s
stated concerns and the means chosen to address them had a reasoned
basis at the time; and, as history has demonstrated, the elections
of 2014 have confirmed the proponents’ contentions and rebutted
Plaintiffs’ fears.
Reasonable minds may differ as to the most desirable earlyvoting
system. 156
Some
may
urge
even
more
early
voting
156
For example, New York, one of the Nation’s most populated States
containing former § 5 jurisdictions, has no early voting whatsoever.
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availability; and, as the evidence at trial revealed, there are
non-frivolous reasons why a State may wish to curtail or even
eliminate early voting.
Substantial scholarship, by Plaintiffs’
own experts, supports the conclusion that early voting actually
dilutes interest in elections and depresses turnout.
There was
also no evidence presented that the earlier system was implemented
following any empirical or quantitative analysis of perceived
needs.
The new schedule may also prove to have flaws, although it
clearly has advantages over the old one.
But such policy choices
are for elected bodies; the question here is tenuousness. In light
of the trade-off between days and hours, especially where at least
one
three-judge
federal
court
endorsed
a
nearly
identical
reduction and the Attorney General did not object, see Brown, 895
F. Supp. 2d at 1241-42, the court does not find the rationale for
the new system to be tenuous.
See also id. at 1256 (finding no
§ 2 denial of equality of opportunity in Florida’s reduction of
early-voting days from 12-14 to 8).
Plaintiffs’
arguments
otherwise
fall
short.
Plaintiffs
describe the aggregate-hours amendment as a “freezing” of the
early-voting hours offered in a county.
is a mischaracterization of the law.
(Doc. 346 at 67.)
This
As described by its sponsor
and Plaintiffs’ own witness, Senator Stein, the law is nothing
more than a “floor,” (Pl. Ex. 549 at 48), or “baseline minimum,”
(Pl. Ex. 550 at 11), on the number of hours counties must offer.
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Counties, however, “can clearly offer more [hours].”
Plaintiffs
criticize
the
cost
savings
(Id.)
justification
originally offered for the reduction in early-voting days.
(Doc.
346 at 67–68.) But, by “savings,” the proponents’ reasons included
an opportunity to reallocate resources, not just a net monetary
savings. (Pl. Ex. 202 at 30-31 (“There is probably a savings in
the sense that by going from seventeen to the ten days you actually
have more opportunity to open up new sites . . . .”).)
As noted
above, the primary justification for the change in the earlyvoting schedule was more polling places and greater parity and
uniformity in early-voting site accessibility.
(See, e.g., id.)
If the proponents’ aim was to decrease overall costs, it is
doubtful the General Assembly would have adopted the same-hours
requirement by a vote of forty-seven to one.
However, given the
actual justifications offered by the law’s proponents, it is not
surprising that Senator Stein’s amendment was so overwhelmingly
approved.
When combined with the ten-day schedule, the same-hours
requirement furthered the interests of the law’s proponents by de
facto requiring more polling places and more convenient hours.
For these reasons, because the ten-day early-voting schedule
with
the
interest
same-hours
by
making
requirement
voting
hours
promotes
more
a
significant
convenient
and
State
polling
locations more numerous and evenly distributed, it is not tenuous.
iii. SDR
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Plaintiffs argue that Defendants’ justification for repealing
SDR is tenuous because, they say, there was no evidence that SDR
caused any significant administrative problem; thus, the attempt
to fix a non-existent problem was pretextual.
(Doc. 346 at 68.)
Defendants argue that the General Assembly had ample evidence
before it that SDR created several administrative problems that
ultimately
resulted
in
ineligible
voters
having
their
votes
counted, effectively disenfranchising other eligible voters.
The evidence before both this court, and the General Assembly
back in 2013, makes clear that SDR – which effectively moved the
twenty-five day registration cut-off to up to three days before
Election Day - brought with it several administrative problems and
increased the likelihood that the State’s verification process
could not be implemented.
Indeed, Plaintiffs do not seriously
dispute this latter point.
that
SDR
voters
failed
the
Rather, at trial they acknowledged
State’s
verification
system,
but
Plaintiffs argue that SDR voters did so at rates comparable to, if
not less than, that of ordinary registrants.
Thus, Plaintiffs
argue that the law’s sponsors must have had ulterior motives in
eliminating SDR.
To properly resolve the contentions, it is
necessary to understand North Carolina’s system for verifying
voter registrants, about which there was considerable evidence and
debate at trial.
Under North Carolina law that predates SDR and its repeal,
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CBOEs
are
required
registered to vote.
to
verify
that
only
qualified
N.C. Gen. Stat. § 163-82.7.
voters
are
To qualify to
vote in North Carolina, a person must (1) be born in the United
States or a naturalized citizen, (2) be eighteen years old, and
(3) “have resided in the State of North Carolina and in the
precinct in which the person offers to vote for 30 days next
preceding an election.”
N.C. Gen. Stat. § 163-55(a). 157
North
Carolina law mandates a “mail verification” process to confirm a
voter’s residence and thus precinct, a process that is interwoven
into multiple sections of the General Statutes and one which
Plaintiffs do not challenge in this case.
340 at 207.)
(Doc. 336 at 114; Doc.
Mail verification must be completed before a person
is considered “registered” to vote in North Carolina.
(Doc. 340
at 207-08.)
The mail verification process begins when a CBOE receives a
registration application.
See N.C. Gen. Stat. § 163-82.6.
Upon
receipt, the CBOE first makes a preliminary determination whether
the applicant is qualified to vote. N.C. Gen. Stat. § 163-82.7(a).
North Carolina law does not require a CBOE to make this preliminary
determination
by
a
specific
time,
but
SBOE
Director
Strach
testified that it should begin “as soon as [the CBOE] receive[s]”
157
North Carolina law disqualifies felons from voting unless their rights
of citizenship have been restored as prescribed by law. N.C. Gen. Stat.
§ 163-55(a)(2).
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the application.
(Doc. 336 at 104.) 158
If the CBOE determines
that the applicant is not qualified to vote, it sends, by certified
mail, a notice of denial of registration to the applicant.
Gen. Stat. § 163-82.7(b).
N.C.
This initial decision is appealable.
Id.
If the CBOE tentatively determines that the applicant is
qualified, it initiates the “mail verification notice procedure.”
Id. § 163-82.7(a)(2).
This begins with the CBOE sending “a notice
to the applicant, by nonforwardable mail, at the address the
applicant provides on the [voter registration] application form.”
Id. § 163-82.7(c).
The notice includes the applicant’s assigned
precinct and voting place and states that the county will register
the applicant “if the [United States] Postal Service does not
return the notice as undeliverable to the [CBOE].”
Id.
If the
notice is not returned as undeliverable, the CBOE registers the
applicant to vote.
Id. § 163-82.7(d).
Under SBOE policy, the
CBOE must do so if the notice is not returned as undeliverable
within fifteen days after mailing.
(Doc. 336 at 111, 121–22.)
If the notice is returned as undeliverable, however, the
registrant’s status remains unverified, and the statute requires
the CBOE to repeat the process by sending a second notice by
158
When SDR was in place, CBOEs had to make a preliminary determination
of an SDR applicant’s qualifications within two business days of
receiving the registration. 2007 N.C. Sess. Law 253, § 1.
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nonforwardable mail to the same address.
82.7(e).
N.C. Gen. Stat. § 163-
If the second notice is not returned as undeliverable,
the applicant is registered to vote.
Id.
If, however, the second
notice is returned as undeliverable, the applicant’s registration
is denied.
Id. § 163-82.7(f); (Doc. 336 at 126; Doc. 340 at 208).
As before, SBOE policy requires the CBOE to register the applicant
to vote if the second mail verification notice is not returned as
undeliverable within fifteen days of mailing.
(Doc. 336 at 112.)
Voting complicates the mail verification process.
Under the
statute, “If the [CBOE] has made a tentative determination that an
applicant is qualified to vote . . . , then that person shall not
be denied the right to vote in person in an election unless the
Postal Service has returned two notices as undeliverable.” 159
Gen. Stat. § 163-82.7(g)(1).
SDR changed the calculus.
N.C.
Once the
CBOE has made a tentative determination that an applicant is
qualified to vote and the applicant votes, the process of denying
the applicant’s vote is complicated.
his registration can simply be denied.
Before the applicant votes,
Id. § 163-82.7(f).
After
the registrant votes, his vote counts unless it is challenged on
159
If a notice has been returned undeliverable “within 25 days before
the election,” then the applicant “may vote only in person in that first
election and may not vote by absentee ballot except in person [as
provided under N.C. Gen. Stat. § 163-227.2]” under procedures developed
by the CBOE to obtain the correct address and assure that the person
votes in the proper place and in the proper contests. N.C. Gen. Stat.
§ 163-82.7(g)(2).
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Election Day under N.C. Gen. Stat. § 163-89, even if the first
notice has been returned undeliverable at the time an applicant
votes. 160
Id. § 163-82.7(g)(2); (Doc. 341 at 163; Doc. 336 at 113).
Accordingly, the statutory scheme - developed before SDR, when the
State had at least twenty-five days to discharge its statutory
obligation
to
mail
verify
each
traditional
registrant
–
was
designed to accommodate voting while verification was ongoing, but
contemplated resolving verification questions before a vote was
cast and certainly before it was counted.
Mail verification is admittedly “not a precise verification
system” for determining an applicant’s residency.
(Doc. 336 at
112 (Director Strach acknowledging that mail verification has
imperfections).)
For example, just because the postal service
delivers a verification does not mean that the applicant lives
there.
In addition, eligible voters, such as those living in
160
A first or second notice returned undeliverable after an applicant
votes requires that the applicant be treated as an inactive registered
voter and undergo a separate confirmation mailing process. N.C. Gen.
Stat. § 163-82.7(g)(3).
The confirmation mailing process is part of
“list maintenance,” which entails confirming that a voter on North
Carolina’s voting rolls is still eligible to vote. (Doc. 340 at 209–
10.) Unlike with the mail verification process, a confirmation mailing
is forwardable mail. N.C. Gen. Stat. § 163-82.14(d)(2); (see also Doc.
340 at 209). The confirmation mailing process, however, requires a voter
to return the mailing to the appropriate CBOE, not simply that the
mailing be delivered. N.C. Gen. Stat. § 163-82.14(d)(2); (see also Doc.
336 at 115).
An alternative to the confirmation mailing process for
returning a voter to active status is for the voter to appear to vote
in a subsequent election and give oral or written affirmation of
continuous residency within the county.
N.C. Gen. Stat. § 16382.14(d)(3); (see also Doc. 336 at 115).
This confirmation mailing
process is not at issue in this case.
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school dormitories and apartments, can fail mail verification
because sometimes those institutions fail to properly deliver
nonforwardable mail to such residents.
Though imperfect, however,
North Carolina’s mail verification process provides some assurance
that
the
registrant
resides
where
he
or
she
claims.
More
importantly, it is the method the State adopted years before any
of the voting changes at issue were introduced.
The North Carolina General Assembly expressed several reasons
for eliminating SDR.
Generally, SDR caused problems with the
processing and verification of voter registrations during early
voting.
These problems were noted four years earlier in a March
31, 2009 SBOE memorandum 161 and in debate on HB 589, and they went
unrebutted by the bill’s opponents.
(Pl. Ex. 202 at 39–41; Pl.
Ex. 549 at 5.)
For one, SDR imposed administrative burdens on CBOEs.
During
the Senate Rules Committee debate, Senator Rucho contended:
There’s no way and there’s no simple way to validate.
What we’re trying to do is give the Board of Elections
an opportunity to do their job correctly, validate those
individuals and be sure that the election is above board.
(Doc. 134-4 at 45.)
Later, during the second reading, he added:
It also allows time for – to verify voters’ information
by repealing same day registration and which will ensure
accuracy.
It’s been a challenge for the Board of
Elections to be able to identify and validate everyone
161
Opponents of the bill were apparently unaware of, or unwilling to
acknowledge, this report.
(See, e.g., Doc. 134-4 at 220 (“Same day
registration, I don’t know of a single problem we’ve had with that
. . . .”).)
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that
has
come
there
registration. . . .
on
the
basis
of
one-day
(Id. at 87; see also Pl. Ex. 56 at 5-6; Pl. Ex. 202 at 41 (noting
that “a lot of [CBOEs] have a very hard time working their way
through a system when someone comes up and registers to vote and
votes at the same time”); Pl. Ex. 549 at 5.)
The SBOE’s 2009 memo
reported that CBOEs “had to hire additional staff to process [SDR]
registrations.”
(Pl. Ex. 56 at 5.)
Moreover, CBOEs also had
difficulty making a timely preliminary determination about the
qualifications of a registration applicant using SDR within the
two business days required.
See 2007 N.C. Sess. Law 253, § 1.
According to the SBOE, CBOE staff “worked long hours and workweeks
to meet this two-business day requirement.
Although staff worked
as efficiently as they could, generally, it was not possible to
process the number of voter registration applications received
during one-stop [early voting] within this two-day period.”
Ex.
56
at
5.)
Similarly,
“[d]ue
to
volume
issues,
(Pl.
[CBOEs]
experienced minor [delays] in DMV validations, especially during
the last few days of one-stop voting.”
(Id.)
Thus, these actual
administrative burdens on CBOEs, identified by the SBOE Executive
Director in 2009, persisted even though CBOEs responded with
increased staffing and hours.
For a State with ten million
residents, these are real-life concerns.
Marston v. Lewis, 410
U.S. 679, 681 (1973) (reversing district court injunction against
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implementation
of
fifty-day
registration
cut-off
where
State
showed, among other things, that in the weeks preceding the general
election “county recorders and their staffs [were] unable to
process the incoming affidavits because of their work in the fall
primaries”).
Further, SDR created additional administrative burdens by
requiring CBOEs to process “intersecting registrations.”
For
example, in the words of former Director Bartlett,
There were issues with some voters who submitted a voter
registration application to one county during the last
few days before the registration deadline and then
appeared to vote in another county or actually
registered at one-stop in another county and voted.
Similarly, there were voters who registered at a onestop site and voted although they had been issued a mailin absentee ballot in a previous county of registration.
(Pl. Ex. 56 at 7.)
To address this issue, CBOEs were required to
process the newest registration and then cancel and revoke the
previous registration.
(Id.)
Because registrations are timely so
long as they are postmarked by the registration deadline, “[m]any
mailed-in registrations were processed after one-stop voting had
begun.” (Id.) Thus, there were situations where SDR-registrations
were cancelled because “the voter submitted a new registration in
another county that was belatedly processed.” (Id.) Each of these
situations required CBOEs to conduct research “on a case by case
basis to ensure that there was no possible fraud being committed.”
(Id.)
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The North Carolina General Assembly also articulated that it
eliminated SDR to better ensure that the State’s mail verification
process could be completed before a registration applicant’s vote
was counted.
North
(Pl. Ex. 202 at 41; Pl. Ex. 549 at 5.)
Carolina’s
mail
verification
requirement
is
most
effective when a traditional registrant votes on Election Day,
thus offering the maximum number of days to run its intended
course.
Early voting complicates that by advancing the day a
ballot is cast and reducing the ability for the State to remove
registrants who fail mail verification before voting.
magnifies this problem.
SDR further
First, by making registration and voting
contemporaneous, it further reduces the State’s ability to remove
registrants before they vote.
Second, by placing registration
closer to the point where votes must be challenged or counted, it
makes it much more likely that those who fail mail verification
will do so after it is too late to challenge their ballot.
In
this regard, SDR (and the removed seven days of early voting)
conflicted with pre-existing law; in a practical sense, they are
incompatible.
Ballots cast by same-day registrants, like all other absentee
ballots, are counted on Election Day; under statute, they must be
290
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challenged, if ever, on Election Day. 162
(Doc. 336 at 157, 225–
162
Former Director Bartlett claimed in the SBOE’s 2009 memo that “[a]s
long as the second notice is returned prior to canvass, then the onestop registrant’s registration can be denied and their in-person absentee
ballot appropriately disapproved.” (Pl. Ex. 56 at 6.) Bartlett’s claim
that the registrant’s registration can be denied is incorrect. By the
canvass day, the registrant has either voted or not. If the registrant
has voted, then failing mail verification will merely make his
registration inactive and subject him to the confirmation mailing
process.
See N.C. Gen. Stat. 163-82.7(g)(3); (Doc. 340 at 208-09).
Bartlett’s claim that CBOEs can simply reject the SDR absentee ballot
on the canvass date is also contrary to Strach’s testimony, (Doc. 336
at 157 (saying that absentee ballots not challenged by Election Day are
not retrievable)), and N.C. Gen. Stat. § 163-89.
As a general rule, challenges to absentee ballots (including early
voting and SDR ballots) must be made on Election Day. See N.C. Gen.
Stat. § 163-89(a) (“The absentee ballot of any voter may be challenged
on the day of any statewide primary or general election or county bond
election beginning no earlier than noon and ending no later than 5:00
P.M., or by the chief judge at the time of closing of the polls as
provided in G.S. 163-232 and G.S. 163-258.26(b).”) Section 163-89(a)
provides a later challenge deadline for the absentee ballots of voters
received by CBOEs pursuant to N.C. Gen. Stat. § 163-231(b)(ii) or (iii).
This appears to be mislabeled, as § 163-231(b) has no (ii) or (iii)
subsections, and thus the reference to § 163-231(b) (ii) and (iii)
appears to be to § 163-231(b)(2)b & c. Section 163-231(b) (1) provides,
in sum, that the CBOE must receive absentee ballots by 5:00 p.m. on
Election Day. Section 163-231(b)(2), however, permits certain absentee
ballots that are received at a later time.
Under § 163-231(b)(2)b,
absentee ballots are to be accepted so long as they are postmarked by
Election Day and received by the CBOE no “later than three days after
the election by 5:00 p.m.”
Under § 163-231(b)(2)c, certain military
absentee ballots are timely if received by the CBOE no “later than the
end of business on the business day before the canvass.”
Accordingly, absentee ballots postmarked by Election Day and
certain military absentee ballots appear to be the only ballots that can
be challenged after Election Day under § 163-89(a). Those ballots “may
be challenged no earlier than noon on the day following the election and
no later than 5:00 p.m. on the next business day following the deadline
for receipt of such absentee ballots.” Id. § 163-89(a). Therefore,
given the deadlines for receipt outlined above, absentee ballots
postmarked by Election Day appear to be subject to challenge up to four
days after Election day (three days after Election Day + the next
business day) and certain absentee military ballots appear to be subject
to challenge on Election Day (business day before the canvass + the next
business day). See id. §§ 163-89(a), 163-231(b). There is no reason
to believe that absentee ballots cast during early voting, including SDR
ballots, fall into either one of these categories. In fact, the trial
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26.)
At the time of HB 589 and under the best case scenario,
therefore, CBOEs had, at most, twenty days to verify same-day
registrants before Election Day if they presented on the first day
of the previous seventeen-day period and CBOEs were able to begin
the verification process immediately.
But, in truth, the majority
of early voting occurred later in the early-voting period, closer
to Election Day, and CBOEs struggled to begin the mail verification
process that quickly.
(Pl. Ex. 42 (Ex. 40); Def. Ex. 268 at 40.)
Former Director Bartlett recognized this issue in the SBOE’s 2009
memo, noting that SDR simply failed to provide a sufficient number
of days to permit the mailings to run their course to verify sameday registrants.
(Pl. Ex. 56 at 5-6.)
Bartlett went so far as to
urge that “SDR laws need to be revised” because of the problem.
(Id. at 6–9.)
In addition, George Gilbert, former director of the
Guilford CBOE, acknowledged that a voter who registers even right
before the “close of books,” twenty-five days before Election Day,
testimony indicated otherwise.
(Doc. 341 at 163 (Director Strach:
stating that an absentee early-voting ballot will count “unless that
voter [is] challenged on Election Day”).)
In sum, Bartlett’s claim is contrary to the evidence presented in
this case and to N.C. Gen. Stat. § 163-89. Although hearings for all
challenges are set on the canvass date, N.C. Gen. Stat. § 163-89(e),
challenges to absentee early voting ballots, including SDR ballots, must
be filed before that date – on Election Day. But even if Bartlett were
correct, there would still be insufficient time. The 2009 SBOE report
authored by Bartlett assumed CBOEs could make sua sponte challenges at
the canvass, yet still found that “there was not enough time between the
end of one-stop voting (and SDRs) and the canvass day to ensure that
verification mailings completed the mail verification process.” (Pl.
Ex. 56 at 5.)
292
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will have more time to pass the verification procedure than a voter
who registered and voted during early voting.
(Doc. 165 at 16.)
Plaintiffs respond that “SDR registrants [mail-] verified at
rates
comparable
registrants.”
that,
to,
and
sometimes
(Doc. 346 at 32.)
regardless
of
whether
higher
than,
non-SDR
Defendants counter with evidence
non-SDR
registrants
fail
mail
verification at higher rates, SDR registrants nevertheless vote at
higher
rates
verification. 163
than
non-SDR
registrants
(Doc. 347 at 42.)
despite
failing
mail
Defendants cite the testimony
163
Plaintiffs rely on two SBOE reports on mail verification rates for
the 2010 and 2012 general elections and a Guilford CBOE report on mail
verification in the 2012 general election. (Id.)
Plaintiffs also rely on testimony Dr. Lichtman attempted to offer
in Plaintiffs’ rebuttal case on the last day of trial, in which he
concluded that 3.63% of all 2014 non-SDR registrants voted but did not
complete mail verification by April 2015. (Doc. 342 at 148.) Defendants
objected to Dr. Lichtman’s rebuttal testimony when it was offered. The
court expressed reservations about allowing it but reserved ruling. (Id.
at 146-47.) The parties have since briefed the motion. (Docs. 324,
325, 351.) The court now concludes that Dr. Lichtman’s testimony should
not be admitted.
There are several problems with Dr. Lichtman’s late-disclosed
testimony.
First, Dr. Lichtman claims to respond to Mr. Neesby’s
analysis in the SBOE’s May 2015 memorandum (Def. Ex. 16) which was
available to Plaintiffs ahead of trial, and Plaintiffs decided to have
Dr. Lichtman complete his analysis at least ten days before Dr.
Lichtman’s rebuttal testimony, yet Plaintiffs made no effort to disclose
it to Defendants. (Doc. 342 at 185.) By attempting to offer it on the
last day of trial, Defendants were severely prejudiced and had no
opportunity to examine the accuracy of Dr. Lichtman’s conclusions or the
methodology he used. Second, the need for advance disclosure was made
apparent during Dr. Lichtman’s cross-examination, which revealed that
he did not extract the data himself but retained a third party, David
Ely, to do so. (Id. at 166-67.) Thus, Dr. Lichtman had no personal
knowledge of how the data was extracted from SEIMS, (see id. at 163170), and Defendants had no opportunity to examine Mr. Ely, who was in
California, on his methodology or to attempt to replicate it, (id. at
166-67). Defendants assert that Dr. Lichtman (or more accurately, Mr.
Ely) omitted several SEIMS database proxies that other SBOE analyses
293
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of Brian Neesby, a data analyst for the SBOE, and a memorandum he
prepared for Director Strach, as evidence of registrants’ mail
verification rates.
(Id.)
Mr. Neesby examined the voted-but-
have included. (Doc. 325 at 10 n.7.) Yet, given Dr. Lichtman’s limited
knowledge of SEIMS or the data extracted, and the limited nature of the
cross-examination that was possible given the timing of the disclosure,
this court is in a poor position to ascertain whether these claims are
true. (Id. at 163-70.) Third, even though Dr. Lichtman purported to
rebut the testimony of Mr. Neesby, the inferences that can be drawn from
his analysis are more limited. In contrast to Mr. Neesby — who studied
the vote-but-failed rate of 2012 voters — Dr. Lichtman purported to study
the vote-but-did-not-pass rate of 2014 voters.
(Id. at 148-49.)
As
noted above and by the Fourth Circuit in League, whether a voter has
failed to pass mail verification is not as probative as whether the voter
has failed mail verification. See 769 F.3d at 246. The latter is a
much stronger proxy for the voter being ineligible than the former.
Fourth, by comparing the vote-but-failed mail verification rates of SDR
and non-SDR registrants within the same year, Mr. Neesby’s analysis
permits the court to infer which voting practice is more problematic.
(Def. Ex. 16 at 5.)
Because Dr. Lichtman only studied regular
registrants in 2014 (when SDR was not available), his analysis does not
indicate whether SDR registrants during 2014 would have voted despite
failing mail verification at an even higher rate than the non-SDR
registrants he studied.
(Doc. 342 at 148.)
The reliability of Dr.
Lichtman’s proposed testimony is also uncertain insofar as his 3.63%
figure is an order of magnitude higher than the comparable figure for
2012, without explanation. (See Def. Ex. 16 at 5 (finding 0.34%.).)
Finally, in their proposed findings of fact and conclusions of law,
Plaintiffs merely cite Dr. Lichtman for the proposition that “3.63% of
2014 registrants had not passed mail verification by April 2015.” (Doc.
346 at 32 (emphasis added).) In other words, Plaintiffs do not claim
that Dr. Lichtman’s study shows that 3.63% of 2014 registrants voted
despite failing mail verification. (Id.) This may be an oversight, but
the fact that even Plaintiffs do not clearly assert this critical fact
only further cautions against reliance on Dr. Lichtman’s analysis. Given
all of these factors, the court, in its discretion, will exclude Dr.
Lichtman’s 2014 analysis.
Plaintiffs failed to lay a sufficient
foundation for Dr. Lichtman’s testimony. Fed. R. Civ. P. 602. Moreover,
even if the court were to consider it, the court would not find it
credible for the reasons discussed above and those stated in Defendants’
objection to his testimony. (See Def. Ex. 325.) The court finds the
testimony of Mr. Neesby, who was highly credible and demonstrated
intimate knowledge about the SEIMS database, to be the more probative
and reliable measure of the comparative rates at which SDR and non-SDR
registrants vote despite failing mail verification.
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failed mail verification rate of SDR versus non-SDR registrants
and found that, for the 2012 general election, 2.44% of SDR
registrants (2,361/97,373) failed mail verification after voting,
compared to 0.34% of non-SDR registrants (2,306/680,904).
Ex. 16 at 5.)
(Def.
In addition, he found that 95.6% of traditional
(non-SDR) registrants completed mail verification before voting,
whereas 96.2% of SDR registrants voted before mail verification
could be completed.
(Id. at 6.)
Plaintiffs have filed several motions to exclude Mr. Neesby
as a witness and to strike his testimony, (Docs. 326, 327), to
which Defendants have responded, (Doc. 350). 164
They contend his
analysis constitutes expert testimony and that Mr. Neesby neither
was disclosed as, nor is, an expert.
(Doc. 326 at 9-11.)
While
Plaintiffs “do[] not object to Mr. Neesby’s testimony to the extent
that it constitutes the bare presentation of election data from
the SBOE’s database,” they do object to certain statements they
claim “provid[e] explanatory inferences and conclusions.”
14-15.)
not
(Id. at
Consistent with Plaintiffs’ objection, this court need
consider
testimony.
Mr.
Neesby’s
opinions
it
regards
to
be
expert
However, it will consider Mr. Neesby’s voted-but-
failed-data, which is merely the presentation of election data
164
Plaintiff Intervenors’ challenge to Mr. Neesby is limited to
BN-3 and his analysis on the mail verification failure rates
registrants. (Doc. 328.) Plaintiff Intervenors do not seek to
Mr. Neesby’s voted-but-failed analysis contained in Defendants’
16. (Id.)
Exhibit
of preexclude
Exhibit
295
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from the SBOE’s database.
Further, the exhibit containing Mr.
Neesby’s data was admitted into evidence without objection, (Doc.
341 at 172), and was made available to Plaintiffs on June 6, 2015,
over a month before trial and prior to Mr. Neesby’s July 18, 2015
deposition, (Doc. 326 at 17-18).
Accordingly, Plaintiffs’ motion
will be denied in that regard.
The important fact is that SDR’s proximity to Election Day
makes it much more likely that SDR registrants will be able to
vote despite failing statutory mail verification. 165
evident apart from Mr. Neesby’s data. 166
In fact, Plaintiffs’ own
exhibits are consistent with what the data demonstrate.
56
(“Some
same
day
registrants
did
This is
not
complete
(Pl. Ex.
the
mail
verification cycle prior to the certification date. . . . 2.4
percent of registrations were subsequently denied due to the
inability of the county boards to verify the applicant’s address
through the mail.”); Pl. Ex. 68A at 6.)
These data merely confirm
what logic reveals must be the case — SDR’s proximity to Election
Day, well inside the twenty-five day registration cut-off, simply
165
Plaintiffs have pointed out that this is possible even for those
registrations submitted before the twenty-five day cut off (i.e.,
registration immediately before the twenty-five day cutoff under N.C.
Gen. Stat. § 163-82.6(c)). This is true — there are instances where
mail verification does not run its course even under the twenty-five day
schedule. But the year-round registration system is designed to avoid
this result, and SDR’s proximity to Election Day clearly made this
problem much worse. This was not merely theoretical.
166
It does not appear that the data in Defendants’ Exhibit 16 had been
compiled at the time SL 2013-381 was adopted.
296
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does
not
provide
a
sufficient
number
of
days
for
the
mail
verification process to work, and thus effectively frustrates – or
negates
—North
residence.
Carolina’s
Moreover,
contemporaneous,
SDR
process
by
making
negated
the
for
verifying
a
registration
State’s
ability
voter’s
and
voting
to
cancel
registrations and made N.C. Gen. Stat. § 163-82.7(f) a nullity.
In this regard, the General Assembly was responding to a legitimate
and obvious problem.
In League, the Fourth Circuit found the State’s best fact to
be “that a thousand votes that had not yet been properly verified
had been counted in an election.”
added).
769 F.3d at 246 (emphasis
The court found this to be tenuous because “nothing in
the district court’s opinion suggests that any of [the over onethousand votes] were fraudulently or otherwise improperly cast.”
Id.
This court’s preliminary injunction opinion could have been
clearer on this point.
For example, this court stated that “over
a thousand ballots were counted in recent elections by voters who
were not (or could not be) properly verified.”
McCrory, 997 F.
Supp. 2d at 353 & n.37 (“[I]n the 2012 general election, SBOE
records show that approximately 1,288 ballots were counted despite
being
cast
process.”).
by
voters
who
did
not
complete
the
verification
However, the trial evidence demonstrates that it was
not just that votes were being counted without mail verification
being completed, which would not reveal whether or not a vote was
297
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properly counted. Instead, votes were being counted despite voters
failing mail verification (Def. Ex. 16)).
In
fact,
the
evidence
before
the
legislators
in
2013
established that in the 2012 general election alone, SDR required
CBOEs to count the votes of at least 1,264 (we now know to be
2,361) SDR registrants who failed the State’s mail verification
after Election Day and the canvass. 167
16 at 5.)
(Pl. Ex. 68A at 6; Def. Ex.
Insofar as mail verification is aimed at determining
whether or not the address given by the registrant is correct (an
eligibility to vote requirement), failing mail verification is a
proxy (albeit an imperfect one) for the registrant’s given address
being
incorrect.
Because
residence
determines
what
races
a
registrant is eligible to vote for, 168 a registrant who votes
despite providing the wrong address will cast an otherwise improper
and ineligible ballot.
When voters cast a ballot in a local
contest for which they are not eligible, eligible voters who also
cast a ballot for that race are disenfranchised — regardless of
whether the ineligible voters intended to commit fraud.
Insofar
as every affected voter’s right is important, “[h]aving every
167
Under State law, these persons are deemed “ineligible” to vote unless
and until they correct their registration.
See supra note 160
(discussing the process for voters on the confirmation mailing list to
vote).
168
Under North Carolina law, voters must be registered for a precinct
and may have their vote count only for candidates for that precinct.
(Doc. 336 at 227–28.)
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Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 304 of 485
ballot
cast
importance.”
by
every
eligible
voter
is
also
of
fundamental
League of Women Voters v. Blackwell, 340 F. Supp. 2d
823, 829-30 (N.D. Ohio 2004).
For, “the right of suffrage can be
denied by a debasement or dilution of the weight of a citizen’s
vote just as effectively as by wholly prohibiting the free exercise
of the franchise.”
Purcell, 549 U.S. at 4 (quoting Reynolds v.
Sims, 337 U.S. 533, 555 (1964)).
Accordingly, at trial Defendants provided what the Fourth
Circuit appears to have sought at the preliminary injunction stage
— evidence that suggests an important number of registrants cast
improper ballots by voting with an incorrect address.
Plaintiffs
nevertheless
have
made
several
additional
challenges to the State’s provided justification.
Plaintiffs first highlight the problems with North Carolina’s
mail
verification
process.
(Doc.
criticisms are not unjustified.
346
at
73,
143.)
Their
But, as with many of Plaintiffs’
arguments in this case, such criticisms involve State policy
considerations that have not been challenged in this case. Indeed,
while Plaintiffs pointed out the weaknesses of mail verification,
they neither challenged it as inappropriate nor demonstrated that
other States have abandoned it. 169
169
In fact, mail verification appears to be a staple of voter
identification and election integrity employed by other States. See,
e.g., Colo. Rev. Stat. Ann. § 1-2-509; Del. Code Ann. tit. 15, § 2014;
Me. Rev. Stat. Ann. tit. 21-A, § 122; Mo. Ann. Stat. § 115.155; 17 R.I.
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The question is whether proponents of SL 2013-381 acted with
only a tenuous reason when, in light of all current registration
options available, they chose to repeal SDR (which they had opposed
in the first instance) after it had been superimposed over the
existing mail verification system in a fashion that made compliance
impossible in some cases.
The current mail verification process
may be imperfect, but the General Assembly’s decision to reverse
its decision in 2007 by removing SDR instead of debating ways to
overhaul the pre-existing and more wide-ranging mail verification
system in an effort to avoid having eligible voter’s ballots
disenfranchised was not unreasonable.
Plaintiffs
justifications
next
are
contend
tenuous
that
because
the
they
General
Assembly’s
refused
to
take
alternative routes to cure the problems, routes proposed by a local
voter advocacy and government lobbying organization.
According to
Plaintiffs, Bob Phillips, the executive director of Plaintiff
Common Cause North Carolina, “had shared with legislators three
Gen. Laws. Ann. § 17-9.1-25; W. Va. Code Ann § 3-2-16.
How States
accommodate mail verification in the context of SDR or EDR reflects
States’ policy choices. For example, Wisconsin, with expansive voter
registration, appears to allow EDR in a fashion that counts the votes
of those who later fail mail verification but simply precludes those
voters from voting again until they address the problem; such persons
may be referred for prosecution. See Wis. Stat. Ann. §§ 6.29, 6.55,
6.56. Colorado, by contrast, does not consider a voter to be registered
until mail verification occurs, apparently in order to comply with the
NVRA’s prohibition from removing a registered voter from the rolls absent
certain notice. Colo. Rev. Stat. Ann § 1-2-509(3); see, e.g., Common
Cause of Colorado v. Buescher, 750 F. Supp. 2d 1259, 1279 (D. Colo.
2010).
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possible ways to change SDR to allow for more time for completion
of the mail verification process.”
This
argument
fails
for
(Doc. 346 at 65; Pl. Ex. 12.)
a
number
of
reasons.
Most
importantly, while relevant, just because the General Assembly
chose one policy approach over another to address a real problem
does not render the chosen policy approach tenuous.
See, e.g.,
Askew v. City of Rome, 127 F.3d 1355, 1387-88 (11th Cir. 1997).
Moreover,
Phillips’
proposals
face
their
own
obstacles.
Phillips proposed eliminating SDR during the last five days of the
early-voting period.
(Pl. Ex. 12 at 6.)
Of course, this conflicts
with the relief demanded in this case by Plaintiffs.
It also fails
to acknowledge that it would still provide an inadequate number of
days for the mail verification process to run its course, and
Plaintiffs
offered
no
evidence
otherwise.
Phillips’
proposal was to move the canvass date back six days.
second
This fails
to recognize that the canvass date has no bearing on the fact that
challenges must be made for SDR ballots on Election Day.
Gen. Stat. § 163-89(a).
See N.C.
It also ignores the fact that, even if
the canvass was later, 170 and even if challenges could be made on
that day, SDR would still deprive the State of its ability to deny
170
Moving the canvass date back a sufficient distance would not be
without its own challenges. (Doc. 336 at 156-57) (Strach: testifying
that “in order for the mail verification system . . . to work, I am not
sure how far it [would have to be moved back]. You could possibly be
into December or later, and then we would have other issues with seating
elected officials . . . .”).)
301
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registration applications under N.C. Gen. Stat. § 163-82.7(f) — in
effect requiring the State to carry the burden of mounting a
successful challenge under N.C. Gen. Stat. § 163-89.
Phillips’
third proposal was not to count a ballot if the first mail
verification notice returns as undeliverable.
(Pl. Ex. 12 at 6.)
This only weakly addresses SDR’s problems articulated by the
General Assembly because, as noted above, much of SDR’s use takes
place toward the end of early voting (closest to Election Day),
which
provides
little-to-no
time
for
even
the
first
mail
verification notice to return undeliverable by Election Day, when
election officials are already busy managing other aspects of the
election.
(Pl. Ex. 42 (Ex. 40); Def. Ex. 268 at 40.) 171
Plaintiffs
administrative
suggest
burdens,
that
the
specifically
processing of provisional ballots.
at 31-32.)
removal
of
SDR
requiring
will
the
create
increased
(Doc. 346 at 29; Pl. Ex. 811
According to Plaintiffs, some number of unregistered
individuals who would have cast a regular ballot through SDR will
now cast a provisional ballot.
This appears to be true in part,
with the caveat that under federal and State law, voters who do
not claim to be registered are not entitled to cast a provisional
171
Further, to the extent a registrant can fail mail verification due to
postal error, (Pl. Ex. 56 at 5), having only one mailing would increase
the risk that such an error would erroneously disenfranchise the voter.
With two mailings, this error must be repeated in order to affect the
voter.
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ballot.
See 52 U.S.C. § 21082(a); N.C. Gen. Stat. § 163-166.11.
Thus, the only voters who will now cast a provisional ballot but
could have cast a regular ballot with SDR in place are those who
claim they are registered to vote.
Nevertheless, the number of
provisional ballots cast during early voting because of “no record
of registration” increased by 871 from 2010 to 2014 (97 to 968). 172
(Pl. Ex. 689.)
This supports Plaintiffs’ argument, albeit weakly.
In addition, because the registrant is claiming to be registered,
CBOEs evaluating “no record of registration” provisional ballots
must research whether or not there was an attempt to register.
(Pl. Ex. 800 at 34-39.)
It is not clear, however, whether this
process is more burdensome than that required to process an SDR
application within the forty-eight hour period previously required
by statute.
2007 N.C. Sess. Law 253, § 1.
But even assuming the
two processes involve similar burdens, there were vastly more SDRregistrants than there will be new provisional ballots for “no
record of registration.”
(See Pl. 40 at 35 (Ex. 14); Pl. Ex. 689.)
For example, even if all 871 of the additional “no record of
registration” provisional ballots cast between 2010 and 2014 are
attributable to the removal of SDR, there were at least 60,918 SDR
172
The total number of provisional ballots cast (including Election Day
voting) for “no record of registration” actually decreased from 2010 to
2014 (9,927 to 7,765), but this disparity is attributable to a decrease
in “no record of registration” provisional ballots being cast on Election
Day. (Pl. Ex. 689.) These Election Day provisional ballots are not
probative of the effect of SDR’s removal given that SDR was never
available on Election Day.
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registrants in 2010, each of which had to be processed within
forty-eight hours.
As such, any administrative burden caused by
the lack of SDR is greatly outweighed by the administrative burdens
caused by SDR.
(See Pl. Ex. 56 at 5.)
Finally, Plaintiffs contend that the removal of SDR is tenuous
because North Carolina law permits the unverified-address-ballots
of
“unreported
movers”
(registrants
who
move
to
a
different
precinct within the same county more than thirty days before
Election Day but fail to notify the CBOE) to be counted.
346 at 143.)
(Doc.
What Plaintiffs do not acknowledge is that North
Carolina’s accommodation of unreported movers is in part required
by § 8(e) of the NVRA.
52 U.S.C. § 20507(e).
North Carolina
provides unreported movers with three voting options on Election
Day.
First, they may vote a regular ballot in their new precinct,
so long as they give an oral or written affirmation of their new
address upon presentation to vote. N.C. Gen. Stat. § 163-82.15(e).
Second, they may vote a regular ballot at a “central location in
the county to be chosen by the [CBOE].”
Id.
Third, they can cast
a provisional ballot at their former precinct, and the CBOE is
required to “count the individual’s provisional ballot for all
ballot
items
on
which
it
determines
that
the
individual
eligible under State or federal law to vote.”
Id.
was
In each
situation, even if the unreported mover is subject to the mail
verification
process
after
voting,
see
id.
§
163-82.15(b)
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(requiring CBOE that receives notice of change of residence to
initiate mail verification), 173 the same proximity-to-Election-Day
problem as SDR exists.
from
§
8(e)
accommodate
of
the
However, it results not from State law but
NVRA,
unreported
which
requires
movers.
North
See
Carolina
52
to
U.S.C.
§ 20507(e)(2)(A),(B).
Under the NVRA, States have in effect two options.
First,
they can permit an unreported mover to choose between voting at
his former precinct, a central location, or his new location. 174
See id. § 20507(e)(2)(A).
Second, they can permit the unreported
mover to vote in the current election at either the unreported
mover’s former or new precinct. 175
Carolina
accommodates
See id. § 20507(e)(2)(B).
unreported
movers
more
than
the
North
NVRA
requires - by giving unreported movers the option to vote in the
173
It is not entirely clear, and the parties have not established,
whether an unreported mover’s completion of an oath or affirmation of
new address while voting triggers the form of mail verification set out
in N.C. Gen. Stat § 163-82.15(b).
174
If a State chooses this option, it is not actually required to permit
the unreported mover to vote in the current election at his new precinct.
See 52 U.S.C. § 20507(e)(2)(A)(ii)(II). Instead, the State need only
permit the unreported mover to “correct [his or her] voting records for
purposes of voting in future elections.”
Id.
Whether or not the
unreported mover can actually cast a ballot in the current election at
his new precinct is to be determined by State law. Id.
175
The NVRA provides that so long as “State law permits the registrant
to vote in the current election upon oral or written affirmation by the
registrant of the new address at” either their former or new precinct,
then “voting at the other locations . . . need not be provided as
options.” 52 U.S.C. § 20507(e)(2)(B).
305
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current election at three locations (former, new, central), see
N.C. Gen. Stat. § 163-82.15(e), but the State could not prevent
the unverified-address-ballots of unreported movers from being
counted without violating the NVRA, see 52 U.S.C. § 20507(e)(2).
At a minimum, the State must provide at least one location for
unreported movers to vote while updating their address, and at
this location the State can do no more than ask the unreported
movers to provide “oral or written affirmation” of their address.
See id.
Thus, the State cannot be faulted for permitting a voting
practice that federal law requires. 176
For all these reasons, the court finds that the trial evidence
demonstrates that the State’s basis for removing SDR was not
pretextual or tenuous, but instead substantial. 177
It sought to
176
Further, even if the State had the authority to address the issue,
there are at least two logical reasons to remove SDR but permit
unreported movers to update their address so close to Election Day.
First, there were far more SDR-registrants than unreported movers. For
example, in 2012, Plaintiffs’ expert Dr. Gronke reports there were
246,895 SDR registrants, (Pl. Ex. 40 at 35 (Ex. 14)), compared to 9,720
unreported movers, (Pl. Ex. 42 at 95). Second, the unreported mover
provision assists those who move, and African Americans move more
frequently than whites. (See, e.g., Pl. Ex. 45 at 17.) African Americans
cast a disproportionate share of unreported mover provisional ballots
in 2010 and 2014. (Pl. Ex. 689.) In other words, there is absolutely
no discriminatory purpose that can be inferred from removing SDR but
leaving the unreported mover provision.
177
There was also evidence that certain ineligible SDR-voters tainted
the outcome of a close municipal election in the town of Pembroke in
November 2013 that caused the SBOE to order a new election. (Doc. 341
at 50-51.) According to Strach: “one of the reasons . . . that the new
election was called was because there was a concern that ineligible
people were being brought to the one-stop sites to register and vote.”
(Id. at 51.) For example, a group of individuals presented a common
306
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repeal a voting mechanism that resulted in the counting of votes
for thousands of voters who failed mail verification.
The Supreme
Court has recognized that a State “indisputably has a compelling
interest in preserving the integrity of its election process.”
Purcell, 549 U.S. at 4 (quoting Eu v. San Francisco Cty. Democratic
Cent. Comm., 489 U.S. 214, 231 (1989)).
integrity
of
our
electoral
processes
“Confidence in the
is
functioning of our participatory democracy.”
essential
to
the
Id.
Interestingly enough, at this court’s January trial, Dr.
Burden
recognized
that
registration requirement.
States
have
a
strong
(Doc. 407 at 53.)
interest
in
a
In his words,
“[m]andating voter registration at one point became a sort of
obvious reform for many states.
That was a new restriction, but
it had a strong motivation behind it.” (Id.)
Of course, a
registration requirement is diluted where the State is not able to
verify the information provided.
SDR presents just such an issue;
it requires the State to accept the votes of several thousand
lease and voted via SDR even though they were not actually residents at
the address on the lease. (Id. at 50-51.) The poll worker should not
have allowed the individuals to vote via SDR, given that their lease was
not an acceptable HAVA document.
(Id.)
The incident, nevertheless,
illustrates the value of mail verification, especially given that poll
worker (often volunteers) error does occur. (Def. Ex. 816 at 43-44.)
Since the ineligible voters did not actually live where they purported,
(Doc. 341 at 50-51), they likely would have failed mail verification if
only there had been time for it to be completed, (see id.).
307
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individuals who failed mail verification. 178 In light of this fact,
it
is
difficult
to
understand
how
Dr.
Stewart
can
consider
registration an “obvious reform,” but consider the removal of SDR
to be merely tenuous.
(See Pl. Ex. 44 at 14-18.)
iv.
OOP Voting
When introducing the revised HB 589 to the Senate Rules
Committee, the repeal of OOP voting was described as “basically
mov[ing] the law back to the way it was prior to 2005.”
Ex. 202 at 12.)
(See Pl.
Before 2005, North Carolina law required voters
to vote in their assigned precinct.
Not
until
the
2004
general
election
did
State
election
officials for the first time begin to count provisional ballots
cast outside the voter’s precinct.
James v. Bartlett, 359 N.C.
260, 266, 607 S.E.2d 638, 641 (2005).
The counting of these
ballots changed the outcome in some elections, and the losing
candidates filed suit.
See In re Election Protest of Fletcher,
175 N.C. App. 755, 756, 625 S.E.2d 564, 565 (2006) (noting the
challenger’s party affiliation).
In James, a unanimous North
Carolina Supreme Court held that the State’s election statutes
“clearly
and
unambiguously”
prohibited
the
ballots.
359 N.C. at 267, 607 S.E.2d at 642.
counting
of
such
In so construing
178
These SDR voters failed even though they were required to provide at
least a HAVA document bearing their name and address, see 2007 N.C. Sess.
Law 253, § 1.
308
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the statutes at issue, the Court avoided deciding whether the North
Carolina State Constitution also prohibits the counting of OOP
ballots.
Id. at 266, 607 S.E.2d at 642.
Less than a month after the Republican challengers won in the
North
Carolina
Supreme
Court,
however,
the
Democratically-
controlled General Assembly amended the election laws and stated
that it had intended to permit OOP ballots all along, 2005 N.C.
Sess. Law 2, § 1(3), even though HAVA does not require that OOP
provisional ballots be counted, see 52 U.S.C. § 21082(a)(4); James,
359 N.C. at 267-68, 607 S.E.2d at 643. 179
The General Assembly,
strictly along party lines, retroactively applied this rule in
order to nullify the Republican challengers’ win at the Supreme
Court.
In 2013, after the Republicans took control of the General
Assembly, they repealed OOP voting.
See 2013 N.C. Sess. Law 381,
§ 49.1.
Plaintiffs claim that the repeal of OOP voting was tenuous.
The trial evidence demonstrated otherwise.
Plaintiffs argue that there was no reason given for repealing
OOP voting during the legislative process.
The Supreme Court has
explained that, in the Fourteenth Amendment context, “Although
179
In 2003, the General Assembly enacted a law “to ensure” that North
Carolina law complied with the requirements of HAVA. 2003 N.C. Sess.
Law 226, § 1. This enactment had bipartisan support, but apparently not
as to the interpretation the Democratically-controlled legislature later
sought to attribute to it.
309
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race-based decisionmaking is inherently suspect, until a claimant
makes a showing sufficient to support that allegation the good
faith of a state legislature must be presumed.” Miller v. Johnson,
515 U.S. 900, 916 (1995) (citations omitted).
No legislator in
the House or Senate openly opposed the removal of OOP voting during
the legislative debate.
(See, e.g., Doc. 335 at 208.)
There
appears to have been nothing said about OOP voting, whether for or
against it.
Given the controversy in 2005, there was probably little need
for a debate.
election
laws
When the Supreme Court unanimously interpreted the
to
prohibit
OOP
voting,
it
provided
extensive
justifications for requiring voters to cast ballots in the correct
precinct.
The Court initially noted that the precinct-based
“voting system is woven throughout the fabric of our election
laws.”
James, 359 N.C. at 267, 607 S.E.2d at 642.
It went on to
explain how North Carolina’s
statutory residency requirement provides protection
against election fraud and permits election officials to
conduct elections in a timely and efficient manner. The
General Assembly recognized in ratifying N.C.G.S. § 163–
55 that without a precinct residency requirement, there
would be a generous magnification of the potential for
mischief in the form of one person voting in numerous
precincts.
Id. at 270, 607 S.E.2d at 644 (citations omitted).
The Court
observed that, “If voters could simply appear at any precinct to
cast their ballot, there would be no way under the present system
310
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to conduct elections without overwhelming delays, mass confusion,
and the potential for fraud that robs the validity and integrity
of our elections process.”
Id.
The Court agreed with the findings of the Sixth Circuit as
well, which provided a number of reasons for enforcing a precinct
system:
The advantages of the precinct system are significant
and numerous: it caps the number of voters attempting to
vote in the same place on election day; it allows each
precinct ballot to list all of the votes a citizen may
cast for all pertinent federal, state, and local
elections, referenda, initiatives, and levies; it allows
each precinct ballot to list only those votes a citizen
may cast, making ballots less confusing; it makes it
easier for election officials to monitor votes and
prevent election fraud; and it generally puts polling
places in closer proximity to voter residences.
Id.
at
270-71,
607
S.E.2d
at
644–45
(quoting
Sandusky
Cty.
Democratic Party v. Blackwell, 387 F.3d 565, 568-69 (6th Cir. 2004)
(per curiam)).
In the Sixth Circuit case, that court had further
explained,
The States long have been primarily responsible for
regulating federal, state, and local elections. These
regulations have covered a range of issues, from
registration requirements to eligibility requirements to
ballot requirements to vote-counting requirements. See
Storer v. Brown, 415 U.S. 724, 730, 94 S. Ct. 1274, 39
L.Ed.2d
714
(1974)
(“[T]he
States
have
evolved
comprehensive, and in many respects complex, election
codes regulating in most substantial ways, with respect
to both federal and state elections, the time, place,
and manner of holding primary and general elections, the
registration and qualifications of voters, and the
selection and qualification of candidates.”).
One
aspect common to elections in almost every state is that
voters are required to vote in a particular precinct.
311
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Indeed, in at least 27 of the states using a precinct
voting system, including Ohio, a voter’s ballot will
only be counted as a valid ballot if it is cast in the
correct precinct.
Sandusky Cty. Democratic Party, 387 F.3d at 568.
Several of the legislators who voted for SL 2013-381 had also
voted against allowing OOP voting in 2005, opting instead for the
system recognized in Sandusky County Democratic Party and later in
2005 by the North Carolina Supreme Court in James.
Ex.
168
(House
and
Senate
votes
on
OOP
(Compare Def.
voting
in
2005
by
legislator), with Pl. Exs. 124–25 (House and Senate votes on
removal of OOP voting in 2013 by legislator).)
Defendants
note
an
additional
benefit
in
requiring
in-
precinct voting, which Plaintiffs fail to acknowledge: OOP voting
actually partially disenfranchises voters.
That is, when OOP was
permitted, although OOP voters were permitted to vote in statewide races, they were not permitted to vote in precinct-specific
contests for which they would otherwise have been eligible had
they only appeared at their assigned precinct.
28.)
This
organizations
problem
is
only
intentionally
further
(Doc. 336 at 227–
aggravated
transporting
voters
by
to
political
the
wrong
precinct, which in fact occurred before SL 2013-381 through, for
example, the GOTV activities of one of the Plaintiffs in this case.
(See, e.g., Pl. Ex. 9 at 5; Pl. Ex. 811 at 46.)
Removing OOP
voting thus ensures voters are fully enfranchised to vote in those
312
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contests in which they are eligible while also promoting the
efficient and organized operation of the State’s election system.
(See Def. Ex. 132 at 2-3 (Mecklenburg CBOE director observing that
OOP potentially caused a second primary in the County).)
Plaintiffs contend that there is no trial evidence of the
administrative burdens caused by OOP voting or the abuse of the
precinct system.
(Doc. 346 at 68–69.)
produce such evidence.
Defendants did, however,
First, SBOE Director Strach described the
additional procedures required for administering OOP voting:
The county board of elections would determine . . . what
precinct [the voters] were properly registered in. So
then they would have to go and research to see which
offices they were eligible to vote for, and if those
offices were different than the ballot that had been
cast where they voted, then they would have to see which
of the offices they voted for on that ballot they were
eligible for, which ones they were not. . . . [I]f that
ballot was counted, it would either have to be hand
counted or they would have to complete a new ballot with
those [eligible] races voted for in the way that the
voter voted so they could be put through the machine,
the voting machine.
(Doc. 336 at 227–28; see also Pl. Ex. 817 at 43–46 (CBOE official
describing the process of counting OOP provisional ballots under
the old law).)
Strach also testified that, after the removal of
OOP voting, the review of provisional ballots to determine only
whether ballots were cast in the correct precinct required minimal
effort.
(Doc. 336 at 228–29.)
It is true that the State’s accommodation of unreported movers
creates
administrative
burdens
that
could
be
avoided
without
313
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violating the NVRA.
See 52 U.S.C. § 20507(e)(2).
As noted above,
North Carolina provides unreported movers with three Election Day
voting sites, one of which is their former precinct.
Stat. § 163-82.15(e).
N.C. Gen.
If an unreported mover elects that option,
he is permitted to cast a provisional ballot and the CBOE is
required to count it “for all ballot items on which it determines
that the individual was eligible under State or federal law to
vote.”
Id. § 163-82.15(e)(iii).
This means that, as with OOP
ballots, the CBOE has to review the full ballot of unreported
movers voting provisionally in their former precinct to tabulate
and record the races for which the unreported mover is eligible to
vote in his new precinct and invalidate votes cast in races for
which the unreported mover is not eligible (i.e., those races for
which only individuals residing in the unreported mover’s old
precinct are entitled to vote).
See id.
For 2006 through 2012, unreported movers accounted for 25.4%
of provisional ballots, 180 while OOP voters accounted for 14.7% of
provisional ballots.
(Pl. Ex. 42 at 95 (tbl. 12).)
Thus, both
OOP voters and unreported movers impose the same (or at least very
similar) administrative burdens on CBOEs, and both involve partial
disenfranchisement,
yet
unreported
movers
account
for
more
180
Under the statute, unreported movers voting at their new precinct or
a central location could not have cast these provisional ballots, as the
statute calls for them to receive regular ballots.
N.C. Gen. Stat.
§ 163-82.15(e); (Def.. 368 at 59-60).
314
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provisional ballots than OOP voters.
(Id.)
The State could have
removed the administrative burden caused by unreported movers,
promoted full enfranchisement, and still complied with the NVRA by
permitting unreported movers to vote only at their new precinct.
52 U.S.C. § 20507(e)(2)(B) (providing that a State need not permit
voting at other locations if unreported movers are permitted “to
vote in the current election upon oral or written affirmation” at
the polling place for the voters’ new address).
If it had done
so, CBOEs would not be required to conduct the research and hand
tabulation efforts discussed above.
But the fact that North
Carolina expanded the precinct options for unreported movers is
not sufficient to make the State’s interest in administrative
efficiency or full enfranchisement tenuous. First, the State could
only have reduced the administrative burdens caused by unreported
movers by removing voting opportunities for unreported movers, and
African Americans cast a disproportionate share of unreported
mover provisional ballots in 2010 and 2014.
(See Pl. Ex. 689.)
Second, surely the State’s effort to reduce a problem is not
stripped of all value simply because the State failed to completely
eradicate it.
Cf. Williamson, 348 U.S. at 489; Billups, 504 F.
Supp. 2d at 1381-82 (“[T]he legislature has wide latitude in
determining the problems it wishes to address and the manner in
which to address them (quoting Rokita, 458 F. Supp. 2d at 829)).
In any case, permitting unreported movers to cast provisional
315
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ballots does not undermine the State’s asserted interest in a
precinct-based system.
As noted by the North Carolina Supreme
Court in James, for voting to be timely and efficient on Election
Day, officials need to be able to predict how many voters will
vote in each precinct.
359 N.C. at 270-71, 607 S.E.2d at 644-45.
Precincts seek to promote efficient voting on Election Day by
capping this number.
Id.
In addition, unlike an OOP voter, an
unreported mover voting a provisional ballot at the registrant’s
former precinct will not disturb this calculus.
Because the
unreported mover’s change of address was not reported, the CBOE
would have planned for the unreported mover to vote at his former
precinct.
In this sense, an unreported mover who votes at his
former precinct is presenting where the State expected and planned
for him to vote.
Unlike OOP, there is no reason to think that
unreported movers who vote at their new precinct will present in
groups or disproportionately at one precinct. (Cf. Pl. Ex. 9 at 5
(demonstrating that GOTV efforts disturbed the precinct calculus
by transporting groups of voters to the polls, irrespective of
their correct precinct); Pl. Ex. 811 at 46.)
In addition, while
the number of unreported movers has an inherent consistency in
that it is tied to actual moves, there is no similar cap on the
number of OOP voters.
For those elections from 2006 to 2012, the
number of unreported movers fluctuated up and down, while the
number of OOP voters increased in each election (even when moving
316
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from a midterm to a presidential election). 181
(tbl. 12).)
(Pl. Ex. 42 at 95
In this sense, only OOP had the potential to transform
from exception to the rule.
For these reasons, the State’s asserted interest in reducing
the administrative burdens on CBOE staff is not tenuous, but not
strong.
The
same
is
true
of
the
State’s
interest
in
fully
enfranchising voters. However, the State’s interest in a precinctbased system, as articulated in James, is substantial.
v.
Defendants
registration.
through
Pre-Registration
offer
two
for
eliminating
pre-
First, they argue that young people registered
pre-registration
eligibility
rationales
and
may
registration
become
status.
confused
(Doc.
347
about
at
their
29,
56.)
Second, they contend that the vast majority of States did not offer
pre-registration.
(Id. at 29.)
The second justification is true, but it is unclear how much
weight
to
give
such
a
generic
justification.
The
court’s
assessment under § 2 is local.
The first justification appears to be true to some degree.
During the legislative debate, Senator Rucho noted that there was
some confusion in his family when his son pre-registered, (Pl. Ex.
181
There were 10,474 unreported movers in 2006, 11,064 in 2008, 7,410 in
2010, and 9,720 in 2012. There were 3,115 OOP voters in 2006, 6,032 in
2008, 6,052 in 2012, and 7,486 in 2012. (Pl. Ex. 42 at 95 (tbl. 12).)
317
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202 at 22), though the nature of this confusion was not clearly
laid out in the legislative debates.
In other ways, however, the legislative debates do tend to
highlight some of the confusion that naturally flows from the way
pre-registration actually works.
Under the old law, when a person
under the age of eighteen “pre-registered,” his pre-registration
application was sent to the SBOE.
§ 10.(a).
2009 N.C. Sess. Law 541,
When that person reached the age of eligibility, the
SBOE would automatically process the registration application.
Id. § 7.(a).
Thus, based on this system, one who pre-registers
was not yet actually registered to vote, and until turning the
right age, the pre-registration application sat in an electronic
queue, waiting to be processed.
(Doc. 336 at 205.)
But when the
young person became old enough to register, the registration
application
verification.
would
be
processed,
ultimately
initiating
mail
2009 N.C. Sess. Law 541, § 10.(a) (providing that
mail verification of pre-registrants was to begin “[n]o later than
60 days prior to the first election in which the applicant will be
legally entitled to vote”).
Any pre-registrant who had moved
between (or even within) counties since pre-registering would
likely fail mail verification.
Likewise, any pre-registrant who
moved to and became a resident in a different county after being
successfully
registered
would
nevertheless
have
to
register
318
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again. 182
See
generally
N.C.
Gen.
residency for voting purposes).
Stat.
§
163-57
(defining
Of course, none of this would
likely have been apparent to the pre-registrant either when preregistering (perhaps a year earlier) or when the registration was
actually processed (perhaps a year or more later).
registrant
would
only
have
known
that
he
or
she
The prehad
“pre-
registered” to vote.
Further, the former director of the Wake County Board of
Elections, Cherie Poucher, testified that her office received
calls from pre-registrants who were confused that they had never
received a voter registration card.
(Def. Ex. 368 at 17-18.)
Ordinarily, registrants receive a voter registration card within
a few weeks of submitting their registration.
However, because,
as shown above, pre-registrants are not actually registered until
a later time, they will not receive a voter registration card in
the usual time frame.
(Def. Ex. 368 at 17-18.)
Poucher’s
testimony does not establish that these type of inquiries were a
significant burden on the Wake CBOE, but it does suggest that at
least some pre-registrants were confused about the significance of
their pre-registration.
Weighing against the justifications offered by Defendants is
182
Presumably, this is why Plaintiffs’ witness, Nadia Cohen, discussed
below, still had not registered to vote after she graduated from high
school, since she was about to move to a different county for college.
319
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the fact that, in many ways, pre-registration is simpler than the
current
registration
process.
eligible
to
With
pre-registration,
pre-register
on
his
an
individual
became
sixteenth
birthday.
Without preregistration, “eligibility to register to
vote depends on age relative to Election Day; seventeen-year-olds
who will turn 18 by Election Day are eligible to register.”
Ex. 235 at 16.)
between
(Pl.
As described by Dr. Hillygus, this connection
eligibility
and
Election
Day
creates
the
following
complexity, given that the date of Election Day is variable:
[A] 17-year-old with a November 8th birthday was not
eligible to register in 2014, while a 17-year-old with
the same birthday would be able to register in 2016.
More complicated still, each municipality in the state
can set its own date for the general election in offcongressional election years, creating variability
across the state in the specific eligibility date in
odd years.
(Id.)
Due to this complexity, for some time the North Carolina
SBOE decided “that the best way to resolve these inconsistencies
[was] to only offer voter registration to those who are 18 and
older.” (Id. at 16 n.41.)
In sum, Defendants have offered some evidence that preregistration created voter confusion, and Plaintiffs have offered
evidence
that
the
current
system
is
more
complicated.
The
tenuousness of the justification is examined with an eye for
finding a pretext for racial discrimination.
999 F.2d at 870–71.
See, e.g., LULAC,
But having reviewed all the evidence in the
320
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case,
this
court
cannot
find
that
Defendants’
proffered
justifications are a tenuous pretext for racial intent.
First,
given the recent enactment of pre-registration, it is unlikely the
General Assembly could have anticipated that pre-registration’s
removal
would
Plaintiffs
make
have
registration
provided
no
more
evidence
complex.
that,
After
prior
to
all,
pre-
registration’s enactment in 2009, the State struggled to register
individuals once they reached the age of eligibility. A reasonable
legislator
could
believe
that
whatever
system
registered
generations of North Carolinians prior to 2009 would go back into
place when pre-registration was removed.
Second, Plaintiffs have
not provided evidence that the General Assembly had statistics
regarding the use of pre-registration, especially based on a racial
breakdown.
(Doc. 285 at 47-48 (claiming that the legislature had
demographic data on SDR and early voting, but making no claim as
to pre-registration); Doc. 286 at 48-50 (same).)
Third, because
pre-registration did not tend to favor one party over another and
since most pre-registrants chose to be unaffiliated voters, racial
use would have been difficult to infer from party affiliation.
Finally, the State is surely permitted to draw some lines,
especially where the age of registration the State chooses is
rationally tied to when individuals actually will be eligible to
vote in the next general election.
If the State does not have a
non-tenuous interest in tying registration to when individuals
321
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become eligible to vote, then it is difficult to imagine any line
that could legitimately be drawn.
If sixteen-year-olds cannot be
legitimately prohibited from registering, then why can fifteenyear-olds or fourteen-year-olds?
Accordingly, while the evidence
is mixed and the State’s justifications are weaker than for the
other
provisions,
the
court
nevertheless
cannot
find
that
Defendants’ justifications for the repeal of pre-registration are
tenuous.
*
*
*
One final consideration regarding tenuousness.
The fact that
the legislative bodies of a majority of States have not adopted
the measures under consideration here is an indication that answers
to these questions are far from clear-cut.
No one has ever
suggested that a legislature’s debate over whether to adopt them
would
fail
to
reflect
legitimate
conflicting policy considerations.
concerns
and
not
involve
If a legislature can have a
good faith, legitimate debate about the wisdom of a law, then that
says something about whether it can have a similar good faith
dispute about its repeal.
3.
Equality of Opportunity and Social and Historical
Conditions
Having examined the practical impact of SL 2013-381, the
Gingles factors, and other considerations in the totality of the
circumstances, this court must now determine whether Plaintiffs
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have met the Fourth Circuit’s two-element test: (1) whether the
specific election changes, individually and cumulatively, “impose
a discriminatory burden” on African Americans and Hispanics in
North Carolina, such that they “have less opportunity than other
members of the electorate to participate in the political process
and to elect representatives of their choice”; and (2) whether the
“discriminatory burden” is “caused by or linked to social and
historical
conditions
that
have
or
currently
discrimination against” African Americans and Hispanics.
769 F.3d at 240.
produce
League,
“[T]he relative ability of [minority] voters to
vote through the remaining options available” under SL 2013-381 is
relevant to whether they have an equal opportunity to participate
in the political process.
Husted, 768 F.3d at 556; accord Holder,
512 U.S. at 880-81 (noting that under § 2, the effect of a voting
rule can be evaluated “by comparing the system with that rule to
the system without that rule”).
The question is not whether the voting law could be made more
convenient — they virtually always can be.
Rather, the question
is whether the electoral system as applied treats protected classes
the same as everyone else, determined by the totality of the
circumstances.
League, 769 F.3d at 243 (stating that the § 2
inquiry requires “‘an intensely local appraisal of the design and
impact
of’
electoral
administration”)
(citations
and
internal
quotation marks omitted)); Frank, 768 F.3d at 754 (“Yet it would
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be implausible to read § 2 as sweeping away almost all registration
and voting rules.
It is better to understand § 2(b) as an equal-
treatment requirement (which is how it reads) than as an equaloutcome command (which is how the district court took it).”). This
is necessarily the case because § 2 cannot be read to emphasize
“the word ‘opportunity’ at the expense of the word ‘equally.’ . . .
Section
2
advantage.”
does
not
guarantee
minority
voters
an
electoral
Bartlett, 556 U.S. at 20 (per Kennedy, J.). 183
183
By way of comparison, in measuring the nature of the burden, courts
examining claims under § 5 have acknowledged that a burden must be
material.
Florida, 885 F. Supp. 2d at 312 (“[A] change is not
retrogressive simply because it deals with a method of voting or
registration that minorities use more frequently, or even because it
renders that method marginally more difficult or burdensome. Rather,
to be retrogressive, a ballot access change must be sufficiently
burdensome that it will likely cause some reasonable minority voters not
to register to vote, not to go to the polls, or not to be able to cast
an effective ballot once they get to the polls.”); South Carolina, 898
F. Supp. 2d at 39-40 (“A state voting law has a discriminatory
retrogressive effect if the law disproportionately and materially
burdens minority voters when measured against the pre-existing state
law.” (emphasis added)); Texas v. Holder, 888 F. Supp. 2d 113, 126
(D.D.C. 2012) (“Texas can prove that SB 14 lacks retrogressive effect
even if a disproportionate number of minority voters in the state
currently lack photo ID.
But to do so, Texas must prove that these
would-be voters could easily obtain SB 14–qualifying ID without cost or
major inconvenience.”), vacated and remanded on other grounds, 133 S.
Ct. 2886 (2013); see also Nicholas O. Stephanopoulos, The South After
Shelby County, 2013 Sup. Ct. Rev. 55, 110 (2013) (“Sometimes a plaintiff
will be able to establish a statistical disparity between minorities and
whites as well as a material burden on voting -- meaning that
preclearance would have been denied . . . .” (emphasis added)). One
court has applied the same reasoning in the § 2 context. Frank, 768
F.3d at 753 (“Although these findings document a disparate outcome, they
do not show a ‘denial’ of anything by Wisconsin, as § 2(a) requires;
unless Wisconsin makes it needlessly hard to get photo ID, it has not
denied anything to any voter.”).
In similar fashion, within the context of § 2, courts have
acknowledged that changes causing inconvenience are not all actionable.
See, e.g., Glover v. S.C. Democratic Party, No. C/A 4-04-CV-2171-25,
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a.
Voter ID 184
Plaintiffs’ § 2 challenge of the photo-ID requirement with
the reasonable impediment exception presents an issue of first
impression.
Only South Carolina has such a law, and it was upheld
as non-retrogressive under § 5 by the three-judge panel in South
Carolina, 898 F. Supp. 2d 30.
different inquiries.
As noted above, § 2 and § 5 require
See League, 769 F.3d at 240.
Nevertheless,
the three judge panel’s examination of the burden imposed by South
Carolina’s very similar voter-ID law is useful to this court’s
examination of whether North Carolina’s law deprives minority
voters of an equal opportunity to participate in the political
process.
Plaintiffs claim South Carolina is distinguishable because
voter ID is easier to acquire in South Carolina.
In South
Carolina, voters can acquire qualifying ID “at each county’s
election office . . . [and] at each county’s DMV office.”
South
2004 WL 3262756, at *6 (D.S.C. Sept. 3, 2004) (“This Court acknowledges
that a second primary election may impose an inconvenience, and hence a
difficulty, for those who vote a second time. However, the Court does
not find that difficulty voting equates with a ‘denial or abridgement’
of the right to vote.”), aff’d sub nom. Reaves v. S.C. Democratic Party,
122 F. App’x 83 (4th Cir. 2005); Hood, 351 F. Supp. 2d at 1335 (“While
it may be true that having to drive to an early voting site and having
to wait in line may cause people to be inconvenienced, inconvenience
does not result in a denial of ‘meaningful access to the political
process.’” (citations and footnote omitted)).
184
Notably, the United States does not make a § 2 results claim against
the current version of North Carolina’s ID law. (Doc. 419 at 73 n.26.)
The United States’ only ID-related claim is that SL 2013-381 was passed
with discriminatory intent.
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Carolina, 898 F. Supp. 2d at 32.
Each of South Carolina’s forty-
six counties has at least one elections office and DMV office.
Id. at 33-34.
“[S]ome of the more populated counties” have “more
than one DMV office.”
Id. at 34.
One option for South Carolina
voters is to acquire a voter registration card bearing a photo.
(Pl. Ex. 1064 at 26-28.) This form of photo ID can only be acquired
through county election offices, not the DMV.
is
already
registered,
the
only
supporting
(Id.)
If the voter
document
that
is
required to receive a photo registration card is the voter’s
registration card.
(Id. at 29-30.)
New voters are required to
show a HAVA document bearing their name and address.
(Id. at 30.)
No-fee voter ID does not expire in South Carolina.
(Id. at 29.)
The record does not establish what type of supporting documentation
is required to receive a qualifying ID from South Carolina’s DMV
offices.
In North Carolina, the DMV is the exclusive provider of a
free voter ID.
(Pl. Ex. 1044 at 142.)
The DMV currently has 114
brick and mortar sites that provide drivers’ license services.
(Doc. 410 at 164, 168-69.)
Some brick and mortar sites have
limited hours, and sixteen of North Carolina’s 100 counties do not
have a brick and mortar site.
(Id. at 203-04; Pl. Ex. 241 at 13;
Pl. Ex. 1044 at 143-144, 166-167.)
Eleven of these counties are
serviced by five DMV mobile units, which currently appear at
twenty-four mobile sites.
(Doc. 410 at 198-99; Pl. Ex. 241 at
326
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13.)
No mobile site is serviced more than three days per month.
(Doc. 410 at 204; Pl. Ex. 241 at 13 n.3.) The DMV plans to increase
the number of mobile sites from twenty-four to seventy by the
summer of 2016.
(Doc. 410 at 211.)
Although a broad number of
documents are acceptable, the DMV requires voters to present two
supporting documents proving the voter’s age and identity.
Ex. 533 at 2 (tbl. 4).)
(Def.
A document establishing only the voter’s
name and address, such as a HAVA document, does not qualify.
(Id.)
In addition, no-fee voter-ID cards do expire in North Carolina,
but as a practical matter they can be used for twelve years for
voters under seventy and permanently thereafter. 185
While
at
first
glance
it
appears
that
brick
and
mortar
locations are more evenly distributed among counties in South
Carolina, there was no evidence of the average drive time to an ID
issuing location for voters in South Carolina, a largely rural
State.
South Carolina may have at least two ID issuing offices in
each county, but it has less than half as many counties as North
Carolina, despite being more than half the size.
State Area
185
No-fee voter IDs follow the same expiration rules as other nonoperator IDs.
(Pl. Ex. 1047 at 31.)
If the voter is sixty-five or
older, the ID expires five years later on the voter’s seventieth
birthday. (Id.) If the voter is younger than sixty-five, the ID is
valid for eight years. (Id.) Of course, the voter ID remains a valid
voting credential for four years past its expiration. N.C. Gen. Stat.
§ 163-166.13(e)(1),(2).
In addition, if a voter’s no-fee ID expires
after his seventieth birthday, the ID remain a valid voting credential
for the rest of the voter’s life. Id. § 163-166.13(f).
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Measurements and Internal Point Coordinates, United States Census
Bureau,
https://www.census.gov/geo/reference/state-area.html
(last visited April 12, 2016). 186
In North Carolina, the DMV
estimates that 98% of the DMV’s “market population” (those age 15
and older) lives within a thirty-minute drive of a DMV license
service station, be that a brick and mortar site or a mobile site.
(Doc. 410 at 168-69.)
With the addition of planned mobile units
in the coming months, DMV will have a brick and mortar or mobile
site within a twenty-minute drive of 98% of the DMV’s market
population.
(Id. at 175-76.)
In addition, while no evidence was
presented on the hours for ID-issuing offices in South Carolina,
North Carolina has an extended hours program that provides weekday
hours until 6 p.m. at twenty-one locations and Saturday hours at
eleven locations.
(Id. at 168; Pl. Ex. 664 ¶¶ 80-83.)
When the
extended-hours program was offered at nineteen locations (now
twenty-one), 86% of DMV’s market population lived within a thirtyminute drive of an extended-hours office.
(Doc. 410 at 168.)
Nevertheless, from January 2014 to January 2016, the DMV
issued 2,139 no-fee voter IDs, (id. at 177-79; Def. Ex. 494),
whereas South Carolina issued 31,156 no-fee IDs during the first
two years of its ID law, 187 (Doc. 1055 at 1 (tbl. A)).
186
There are
Fed. R. Evid. 201.
187
South Carolina issued 6,808 free voter IDs in 2015 and 553 thus far
in 2016, bringing the total issuances to date to 38,517. (Pl. Ex. 1055
at 1 (tbl. A).)
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at least two inferences that can be drawn from this disparity.
The first, which Plaintiffs urge, is that a free voter ID is easier
to acquire in South Carolina.
January
2016,
only
thirty
But this is not apparent.
people
had
presented
to
the
As of
North
Carolina DMV with their name, date of birth, and a SSN all matching
the
Social
Security
Administration’s
receive a no-fee ID card.
database
but
failed
to
(Doc. 410 at 178-79; Def. Ex. 495.)
And as of trial, that number was reduced.
(Doc. 410 at 178.)
Since April 2015, only three persons had presented to the DMV for
a free voter ID but been unable to satisfy the requirement that
their
personal
information
Administration database.
match
the
(Id. at 179.)
Social
Security
Moreover, Plaintiffs
presented evidence of only two sisters who sought a free ID but
were unable to obtain one.
By contrast, one of their witnesses,
Mr. Alonzo Phillips, candidly testified that although he was told
by poll workers he would need a photo ID in 2016, he “didn’t really
think they
. . . were serious,” “figured they would let [him]
still vote with [his] registration card,” and thus “forgot all
about it.”
(Pl. Ex. 1048 at 42-43.)
Based on the record, the
evidence in support of Plaintiffs’ inference is far from strong.
The second, and perhaps more reasonable, inference, is that
fewer people need to acquire a qualifying ID in North Carolina.
As noted above, even though Dr. Stewart had a unique identifier in
South Carolina, he matched a higher percentage of active and
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inactive voters in North Carolina than he did active voters in
South Carolina.
(Pl. Ex. 891 at 19 (tbl. 11); Def. Ex. 504 at 36
(tbl. 4).) This is true when broken down by race, and the magnitude
of the difference only becomes more pronounced when the percentage
of active voters matched in North Carolina is compared to the
percentage of active voters matched in South Carolina, which is
the more accurate comparison.
(Pl. Ex. 1063; Def. Ex. 504 at 36
(tbl. 4).) Most importantly, the estimate provided by Dr. Stewart,
which
this
Carolinians
court
finds
without
overestimates
acceptable
photo
the
ID,
number
also
of
North
exceeds
the
estimates the court ultimately relied upon in South Carolina. 188
It is difficult to know with any reasonable assurance how
many voters still lack a valid photo ID or, among them, those who
lack one due to any burden in acquiring it.
However, there is
little evidence that the latter is so large a group as to overwhelm
election
officials
if
those
voters
reasonable impediment exception.
seek
to
vote
under
the
For example, as shown by Dr.
Thornton, of the 172,098 individuals that the SBOE contacted from
Dr. Stewart’s most recent no-match list, 72.1% did not vote in the
2012
presidential
election.
election
and
39.5%
had
never
(Def. Ex. 511 at 18 (tbls. 6, 7).)
voted
in
any
This is likely
because 33% of individuals on Dr. Stewart’s most recent no-match
188
See supra notes 57-58.
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list are inactive voters.
(Doc. 416 at 50.)
Dr. Hood’s analysis
of reasonable impediment voting in South Carolina only bolsters
this conclusion. (See Def. Ex. 500 at 2 (finding 1.10 reasonable
impediment ballots cast per 10,000 votes in South Carolina during
the 2014 midterm general election).)
Any difference in the ease of acquiring photo ID is where
material distinctions between North Carolina and South Carolina
end.
North
Carolina’s
reasonable
impediment
exception
is
materially indistinguishable from South Carolina’s exception that
received judicial preclearance in South Carolina, 898 F. Supp. 2d
30.
South Carolina’s reasonable impediment provision permitted
voters to vote without photo ID “so long as they fill[ed] out an
affidavit at the polling place and indicate[d] the reason that
they [had] not obtained” a qualifying photo ID.
question
in
that
case
was
whether
interpreted broadly or narrowly.
Id.
the
Id. at 35.
exception
A key
would
be
Although the law provided
that a voter’s statement of reasonable impediment must be accepted
unless it is false, merely denigrating to the photo-ID law, or
nonsensical, 189 the law did not provide examples of what might
constitute a reasonable impediment or establish how the law was to
189
North Carolina’s “merely denigrates,” “obviously nonsensical,” and
“factually false” provisions track exactly the provisions in South
Carolina’s law precleared by the three-judge panel based on the broad
interpretation provided by the State. South Carolina, 898 F. Supp. 2d
at 36-37 & n.5.
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be construed.
Id. at 36 & n.5.
Accordingly, the court leaned
heavily on representations by the South Carolina Attorney General
and the Executive Director of the board of elections, who provided
an official interpretation of the law and described how it would
be implemented.
Id. at 35-36.
Both officials provided a broad
interpretation of the provision and stated that a driving principle
of its implementation would be “erring in favor of the voter.”
Id. at 36.
The attorney general also provided examples of reasons
that would constitute a reasonable impediment and convinced the
court that, so long as the statement was not false, “[a]ny reason
that the voter subjectively deems reasonable will suffice.”
The
court
ultimately
adopted
condition of preclearance.
this
broad
Id. at 37.
interpretation
Id.
as
a
The court required that
“filling out [the affidavit] must not become a trap for the unwary,
or a tool for intimidation or disenfranchisement of qualified
voters.”
Id. at 40.
Further, the court required the reasonable
impediment form to “have separate boxes that a voter may check for
‘religious objection’; ‘lack of transportation’; ‘disability or
illness’; ‘lack of birth certificate’; ‘work schedule’; ‘family
responsibilities’; and ‘other reasonable impediment.’”
Id. at 41.
Finally, the court mandated that the form may “require a further
brief written explanation from the voter only if he or she checks
the ‘other reasonable impediment’ box.”
Id.
So implemented, the
court found that filling out the form would not constitute a
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material burden, at least under the VRA.
Upon
close
examination,
North
Id.
Carolina’s
reasonable
impediment provision is effectively a codification of the threejudge panel’s holding in South Carolina. As noted above, a voter’s
reasonable impediment declaration can only be rejected if it is
false,
merely
denigrating
obviously nonsensical.
to
the
photo-ID
requirement,
or
N.C. Gen. Stat. § 163-182.1B(a)(1).
The
law does not permit a voter’s declaration to be denied on the
ground that it is not reasonable.
the
voter’s
subjective
reasonableness.
See id.
belief
Id. § 163-182.1B(b)(6).
is
relevant
to
the
Only
issue
of
Finally, the law requires all reasonable
impediment forms to, “at a minimum,” contain practically the exact
same categories required by the court in South Carolina.
The only
omission is that the law does not require a box for “religious
objection,” id. § 163-166.15(e), but this is because a separate
provision of North Carolina law grants an exception for those with
religious objections to having their photo taken, id. § 163166.13(a)(2).
In fact, the law goes a step beyond what was
required in South Carolina by requiring that a box be listed for
“[l]ost or stolen photo identification.”
As
in
South
Carolina,
a
voter
need
Id. § 163-166.15(e)(1)f.
only
provide
a
written
explanation if one of the provided boxes does not apply.
Id.
§ 163-166.15(e)(1)h.
Plaintiffs have failed to show that the reasonable impediment
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voting process deprives any group of an equality of opportunity to
participate in the political process.
As noted above, voters need
only complete two forms as part of the reasonable impediment voting
process.
(Def. Ex. 546 at 3.)
Most voters will have significant
parts of these forms pre-populated for them, and, in any case,
voters can receive as much assistance as necessary from either a
person of their choosing or a poll worker.
(See id. at 3; Doc.
414 at 138-39, 189, 211 (“[T]he precinct official is supposed to
do everything they can to try to provide as much explanation to
[the
reasonable
impediment
understand it.”).)
voter]
as
possible
until
they
do
Poll workers have been trained to provide
assistance without inquiring into whether the voter is illiterate.
(Doc. 414 at 189.)
As with SDR, poll workers are trained to ensure
that the declaration is complete before accepting it.
211-12.)
(Id. at
Moreover, although Plaintiffs failed to provide any
expert testimony on the literacy level required to complete the
reasonable impediment process, this court is convinced that it is
no more demanding or intimidating than other voting forms.
supra Part I.D.1.e.
See
As noted above, the first step of the
reasonable impediment voting process - the provisional voting
application form - must also be completed by all provisional
voters, including OOP voters.
(See Def. Ex. 546 (Ex.1).)
In
addition, all voters must complete a registration form and an ATV
form.
(Doc. 410 at 91-93.)
To complete the ATV form, the voter
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must attest that the address he provided is correct and that he
has not voted in the election.
(Pl. Ex. 1056.)
As noted above,
the fact that so many minority voters have completed these forms
in the past undermines Plaintiffs’ argument that the reasonable
impediment voting process is burdensome, especially in light of
the substantial assistance that is available in completing the
reasonable impediment declaration.
claim
that
the
alternative
Finally, Plaintiffs cannot
identification
requirement
of
the
reasonable impediment exception (HAVA document, registration card,
or SSN4 and date of birth) is impermissibly burdensome because
SDR, which plaintiffs claim is necessary to avoid a § 2 violation,
required voters to present at least a HAVA document.
Plaintiffs have also failed to show that the reasonable
impediment
challenge
process
is
likely
arbitrary or discriminatory manner.
to
be
applied
in
an
The challenge process is
designed to place every burden on the challenger and give every
benefit to the voter.
See supra Part I.D.1.e.
The challenger
must make a public records request for the declaration he seeks to
challenge, (Def. Ex. 547 at 1.), and complete and submit the
challenge on the SBOE’s Evidentiary Challenge form “no later than
5:00 P.M. on the third business day following the election,” N.C.
Gen. Stat. § 163-182.1B(b)(2); (Def. Ex. 547 at 7).
The challenge
form must be notarized, and fraudulently or falsely completing it
is a felony.
(Def. Ex. 547 at 7.)
At a hearing, the scope of the
335
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challenge is “strictly limited” to the facts the challenger alleged
in the written challenge form, (id.), and the challenger bears the
burden of proof and persuasion, (id. at 4).
The CBOE must reject
the challenge unless, “having considered all facts in the light
most favorable to the voter, the challenger has shown by clear and
convincing
evidence
that
the
stated
impediment
(1)
merely
denigrates the photo identification requirement, (2) is obviously
nonsensical, or (3) is factually false.” (Id.)
If the voter has
checked one of the template boxes (e.g., lack of transportation),
then the challenger can only prevail under the factual falsity
provision, as the SBOE considers the template boxes to be nondenigrating and not nonsensical as a matter of law.
(Id. at 6.)
Moreover, the ability to bring a successful challenge under the
factual falsity provision is very limited, as a CBOE cannot “find
a challenge valid if it provides only evidence regarding the
reasonableness
182.1B(b)(6).
of
the
impediment.”
N.C.
Gen.
Stat.
§
163-
In addition, Director Strach’s testimony revealed
that the SBOE interprets many of the challenges that Plaintiffs
view as testing the “falsity” of the impediment as only relevant
as to reasonableness.
See supra Part I.D.1.e. Tellingly, despite
also permitting the rejection of “factually false” impediments,
the
Executive
Commission
was
Director
not
of
aware
the
of
South
a
Carolina
single
State
reasonable
affidavit being challenged, much less rejected.
Election
impediment
(Pl. Ex. 1064 at
336
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37-39.)
South Carolina’s implementation of its ID requirement was
deemed a “nonevent.”
(Pl. Ex. 1064 at 92.)
Moreover, Plaintiffs have failed to show that CBOEs are likely
to misapply the challenge process.
The SBOE has provided clear
guidance to CBOE’s on the procedures to be followed.
Ex. 547.)
(See Def.
CBOEs have been trained on the meaning of “clear and
convincing evidence” and “in the light most favorable to the
voter,” (Def. Ex. 551 at 55), and county attorneys will be present
at hearings to assist the CBOE in understanding and properly
applying the legal standards, (Def. Ex. 547 at 4). All Evidentiary
Challenge forms must be forwarded to the SBOE.
(Id. at 3.)
The
SBOE plans to use its legal team to provide oversight of challenges
and ensure CBOEs are following proper procedure.
(Doc. 414 at
215-16.) The SBOE also has the ability to exercise its supervisory
authority over CBOEs to correct any misapplication that may occur.
(Doc. 414 at 138, 216-17.)
Plaintiffs have also failed to show that giving reasonable
impediment declarants a provisional ballot is likely to impose a
material burden on the right to vote.
This issue was addressed by
the panel in South Carolina, which observed:
[T]he word “provisional” is a bit of a misnomer in this
instance. [Provisional ballots cast due to a reasonable
impediment] must be counted and will be counted, at least
so long as the voter does not lie when he or she fills
out and signs the reasonable impediment affidavit.
Counting the reasonable impediment ballots will not
differ in substance from the counting of absentee
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ballots. When the provisional ballot process operates
in this way, casting a provisional ballot instead of a
regular ballot does not burden the right to vote.
898 F. Supp. 2d at 41. The same is true here, as State law provides
for counting these ballots, despite their “provisional” label.
Plaintiffs have also failed to show that the State’s education
and training efforts have been insufficient. The State has engaged
in a substantial multi-media voter education program.
Part I.D.1.b.
See supra
Of central significance, after the fall elections
in November 2015, the SBOE sent every individual who received a
prior mailing describing the need for voter ID (315,755 voters) —
except those who reported they already possessed acceptable photo
ID and those for whom prior mailings were returned as undeliverable
—
an
additional
mailing
describing
the
reasonable
impediment
exception and other exceptions to the photo-ID requirement.
Ex. 535 at 11.)
(Def.
CBOE training on the reasonable impediment
exception and associated procedures has been detailed and will
continue as the November 2016 presidential election approaches.
See supra Part I.D.1.b.
Finally, Plaintiffs’ reliance on evidence that voter ID laws
depress turnout is misplaced.
Not only did Kansas and Tennessee
dispute the results of a study reporting a two percent decrease
after they adopted their ID laws, (Doc. 407 at 75-77), other
reliable evidence demonstrated that Georgia’s ID law depressed
turnout by 0.4%, (Doc. 410 at 220).
Most importantly, however,
338
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none of these States had a reasonable impediment exception; South
Carolina is the only State to do so, and no data were presented as
to its effect on turnout.
In sum, this court reaches the same conclusion as the court
in
South
reasonable
burden”
Carolina:
North
impediment
on
the
Carolina’s
exception
right
does
to
voter
not
vote
“for purposes of the Voting Rights Act.”
Supp. 2d at 41.
ID
law
impose
“a
of
any
with
the
material
group
South Carolina, 898 F.
To put it in § 2 terms, North Carolina’s voter
ID law with the reasonable impediment exception does not deprive
African
Americans
and
Hispanics
of
an
equal
opportunity
to
participate in the political process, as compared to other groups.
b.
Early Voting
Session Law 2013-381 reduced the number of early-voting days
but kept the same number of early-voting hours.
The General
Assembly intended this change to make early-voting locations more
numerous and evenly distributed, and the evidence shows the law
achieved these legitimate ends.
In 2014, with the ten-day voting
schedule in place, there were more voting sites and more high
convenience night and weekend hours. 190
There is reason to believe
190
In Florida’s VRA § 5 lawsuit seeking pre-approval of the reduction in
early-voting days, the court found that “the negative effect of reducing
the number of days from 12 to 8 would likely be offset by the ameliorative
effects of adding non-working weekday hours, a Sunday, and additional
weekend hours.” Florida, 885 F. Supp. 2d at 336-37. The court even
found that “[e]xpanding convenient non-working weekday and weekend
339
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that these new hours will benefit African Americans.
(Doc. 332 at
183-84 (Pastor Gregory Moses: stating that most of his congregation
does not “have the flexibility to be able to leave their jobs and
go and vote”).)
While one Sunday was removed, 191 Plaintiffs failed
to show that souls-to-the-polls organizations will not benefit at
least equally from the new night and weekend hours, especially
given testimony that showed that churches offer transportation
services during most of early voting, rather than just on Sundays.
See Florida, 885 F. Supp. 2d at 337 (noting that “the record
evidence suggests that GOTV groups could adjust to a redistribution
of the total 96 hours over a different number of days, including
weekend days and a ‘souls-to-the-polls’ Sunday”); Brown, 895 F.
Supp. 2d at 1253-54.
In addition, Plaintiffs’ predictions for
long lines in the 2016 presidential election were speculative,
voting hours should therefore help third-party [GOTV] efforts to provide
transportation to the polls for such voters.” Id. The Sixth Circuit
similarly noted the importance of evening hours for lower-income workers
with less flexibility.
Husted, 768 F.3d at 555.
Plaintiffs’ fact
witness evidence supports this conclusion. Several voters testified to
problems they encountered voting during business hours when they worked.
(E.g., Doc. 330 at 165 (Terrilin Cunningham: works 8:00 a.m. to 11:00
a.m. weekdays; noon to 11:00 p.m. Monday-Wednesday; and Mary Kay sales
Thursday evening, Friday evening, and Saturday morning); Pl. Ex. 688 at
13-14 (Lynnette Garth: bus driver, speaking as to her daughter); Doc.
334 at 151, 158-59 (Michael Owens: relied on girlfriend for
transportation who had to be at work during the day; now has auto and
works 8:00 a.m. to 5:00 p.m.); Doc. 329 at 55 (Gwendolyn Farrington:
works 12-hour days).)
191
The available evidence showed that most counties did not utilize both
Sundays even when they were available. (See Doc 126-4 at 45-90; Def. Ex.
13); McCrory, 997 F. Supp. 2d at 373.
340
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flawed, and unpersuasive.
Therefore, what SL 2013-381 took away
in early-voting days, it gave back in equal hours that appear to
be even more convenient. This is demonstrated by the 2014 election
data, where African American turnout actually increased after the
transition from seventeen days of early voting to the new schedule.
Further, Plaintiffs have failed to link the claimed effect of
the removal of the first seven days of early voting to social and
historical conditions.
Americans
at
times
While Plaintiffs established that African
disproportionately
used
the
removed
seven
days, 192 the evidence showed that they were not marginal voters.
Instead,
they
were
the
more
sophisticated
voters
who
vote
regardless of the practices in place, which is likely part of the
reason Plaintiffs were unable to show that African Americans were
habituated to the first seven days of early voting. 193
For example,
regardless of race, those who voted in the first seven days under
the seventeen day schedule in 2012 were more likely to vote in
2014 than those who voted in the last ten days of early voting in
2012.
In
socioeconomic
fact,
under
limitations,
Plaintiffs’
own
including
less
theory,
those
education,
are
with
less
likely to become interested in an election until close to Election
192
Plaintiffs provided no evidence that Hispanics disproportionately
used the removed days of early voting. (See, e.g., Doc. 346 discussing
Hispanics only with regard to SDR, OOP, and pre-registration.)
193
Accord Florida, 885 F. Supp. 2d at 337 (finding that GOTV efforts
could adjust to the redistribution of hours over fewer days).
341
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Day.
There is no reason to think that these voters are more likely
to vote during the removed seven days of early voting, and the
evidence bears this out.
Accordingly, for reasons similar to those articulated in
Florida, 885 F. Supp. 2d at 350-51, it does not appear that
Plaintiffs can even show that SL 2013-381’s changes to the earlyvoting schedule are retrogressive (i.e., that they make early
voting more difficult for any group, including African Americans,
than
it
was
under
the
seventeen-day
schedule).
Certainly,
considered under the totality of the circumstances, Plaintiffs
have failed to show that SL 2013-381’s changes to the early-voting
schedule interact with social and historical conditions to make it
more difficult for African Americans and Hispanics to participate
under the revised early-voting schedule than for other groups.
See Brown, 895 F. Supp. 2d at 1241–42, 1255.
c.
SDR
As noted above, North Carolina’s twenty-five day cut-off for
registration existed both before and after SL 2013-381.
When SDR
existed, the only way an individual could register after the cutoff and vote in the upcoming election was through SDR.
After SL
2013-381, all registrations must be submitted by the cut-off.
Plaintiffs
established
that
African
Americans
342
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disproportionately used SDR. 194
They claim use reflects need for
multiple reasons. First, they claim SDR provides a critical “failsafe” for poor African American voters by providing an exception
to the registration cut-off (the “fail-safe rationale”).
In
addition, because registration and voting can no longer be done at
the
same
time,
GOTV
organizations
have
had
to
registration efforts up to comply with the cut-off.
move
their
(Doc. 332 at
193) (Pastor Gregory Moss: stating that SDR created a “force
multiplier”).)
individuals
Second, they claim SDR assisted low literacy
because
election
officials
would
“insure
that
applications for registration through SDR were properly completed”
(the “assistance rationale”).
(Doc. 346 at 35.)
The evidence
presented at trial, however, undermined Plaintiffs’ claims.
Other
than
disproportionate
use,
the
best
facts
for
Plaintiffs were that African Americans are more likely to move
between counties, and thus more likely to need to re-register, and
that African Americans are more likely to end up in the incomplete
registration queue. 195
See supra Part I.D.3.
194
Plaintiffs also showed that Hispanics disproportionately used SDR
when it was in place. See supra note 111. As noted above, Plaintiffs
were not able to make a showing of discrimination against Hispanics. In
addition, Plaintiffs do not claim that SDR’s removal imposes a heavier
burden on Hispanics than African Americans.
195
Plaintiffs did not provide incomplete queue data for Hispanics.
Pl. Ex. 633 at 5 (tbl. 1).)
(See
343
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It is easy to see a connection between certain reasons for
ending up in the incomplete registration queue and literacy. 196 But
at the end of the day, these statistics are more a function of
North Carolina’s registration requirement — which has not been
challenged — than a reflection of a need for SDR.
The “fail-safe”
rationale offered by Plaintiffs is not persuasive evidence that
the cut-off date is unreasonable; the registrants in the incomplete
queue are not there because they failed to submit their application
by the twenty-five day cut-off.
The incomplete queue does support
Plaintiffs’ assistance rationale, but there is no indication that
the registrants were there because they lacked other available
opportunities to complete their registration properly.
Rather,
the evidence revealed that North Carolina provides multiple ways
for voters to comply with the registration requirement prior to
the cut-off (which is five days more beneficial to voters than the
NVRA’s thirty-day requirement), most of which permit assistance.
The remaining ways for voters to register with assistance are
196
The incomplete queue data provided by Plaintiffs is broken up by the
reason the application was placed in the queue and by race. (Pl. Ex.
633 at 5 (tbl. 1).) Some reasons for ending up in the queue appear to
have a potential connection to literacy, such as “missing signature,”
“date of birth missing,” “incomplete address,” “missing name,”
“incomplete
data,”
“citizenship
box
not
checked,”
“card
missing/unreadable,” and “need registration application.” (Id.) It is,
of course, possible that some individuals may just not be citizens or
not know their birthday. Others, however, are less clearly connected,
including “not in county,” “other reason,” “geocode conflict,” and
“underage.” (Id.) In addition, one category provides no reason, even
though twenty-eight people were evidently rejected for that “reason.”
(Id.)
344
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sufficient to provide African Americans with an equal opportunity
to participate in the political process. See Husted, 768 F.3d at
556 (stating that the “relative ability of African American voters
to vote through the remaining options” is “clearly relevant” to
whether they have “less opportunity” to vote than other groups).
Registration forms can be downloaded from various federal, State,
and local government websites.
person
at
the
SBOE,
any
The forms can also be retrieved in
CBOE,
public
libraries,
public
high
schools, public colleges, and military recruitment offices.
See
N.C. Gen. Stat. §§ 163-82.21, -82.22, -82.23; (Doc. 126-1 at 4).
One may have a number of persons assist in completing the form,
and the applicant can then submit the registration by mail, in
person, or have another person submit the form for them. 197
See
N.C. Gen. Stat. § 163-82.6(a); (Doc. 341 at 17; Doc. 331 at 4142).
In
addition,
one
may
receive
assistance
at
a
voter
registration drive, such as those by souls-to-the-polls and other
GOTV organizations.
(Doc. 332 at 197 ([T]his last election cycle
[2014] . . . we had about 150 people who went out and touched doors
to help get people registered.”); Pl. Ex. 793 at 27-28.) Moreover,
although Plaintiffs claim that socioeconomically disadvantaged
individuals are less likely to seek the services of the DMV, the
197
The statute authorizes submission also by facsimile or scanned
transmission.
N.C. Gen. Stat. § 163-82.6(a).
The SBOE website and
registration form require delivery of a copy with the registrant’s
original signature. This discrepancy was not addressed at trial.
345
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fact remains that when citizens appear at any of the following
State agencies for services, they must be offered the chance to
register to vote: the DMV (including when seeking a no-fee voter
ID if the applicant is not registered), public assistance agencies
(including county departments of social services and departments
of public health); disability services agencies, sometimes at the
registrant’s home (including vocational rehabilitation offices,
departments of services for the blind, departments of services for
the deaf and hard of hearing, and departments of mental health
services); and the Employment Security Commission.
Stat. §§ 163-82.19, -82.20; (Doc. 126-1 at 5).
See N.C. Gen.
Session Law 2013-
381 expanded this list by adding “[s]enior centers or facilities
operated by the county” and “[p]arks and recreation services
operated by the county” as public offices where a county may offer
voter registration, so long as the SBOE, CBOE, and the county board
of commissioners provide approval. 2013 N.C. Sess. Law 381, § 5.1.
Finally, information on how to register is printed in the Judicial
Voter Guide mailed before every election to every household in
North Carolina having an address maintained by the United States
Postal Service.
N.C. Gen. Stat. § 163-278.99E(a); (Doc. 126-1 at
6). 198
198
The statute requires that it be mailed not more than twenty-eight
days and not less than seven days before one-stop (early) voting begins
for each primary and general election. N.C. Gen. Stat. § 163-278.99E(a).
Thus, it does not provide sufficient notice to register for the
346
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The ease of registration in North Carolina is perhaps why
African American registration rates are so robust.
Plaintiffs
wish to attribute this to SDR, but the facts do not bear this out.
For
example,
by
the
court’s
calculation,
even
when
SDR
registrations are not included African American registration rates
nearly approximated white registration rates in 2008 and exceeded
them in 2010 and 2012.
(Pl. Ex. 40 at 35 (Ex. 14); Pl. Ex 684
(tbl. 15).)
Registration without SDR 199
African
American
Registration
without SDR
2008 1,240,979
2010 1,315,531
2012 1,387,089
African
American
Registration
Rate without
SDR
86.93%
87.55%
88.55%
White
White
%
Registration Registration Differ
without SDR
Rate without ential
SDR
4,429,276
4,490,771
4,579,363
87.41%
85.69%
85.04%
-0.48%
1.86%
3.51%
immediately upcoming election; its repetition provides additional notice
and a reminder otherwise.
199
The numbers in the accompanying table simply reflect the removal, by
race, of the same-day registrants in the 2008, 2010, and 2012 primary
and general elections, (Pl. Ex. 40 at 35 (Ex. 14) (Gronke)), from the
registered voters in those years, (Pl. Ex. 684 (tbl. 15)).
SDR
registrations during both primaries and general elections were
considered. To obtain the registration rate without SDR, that number
was further divided by the VAP of each race. (Id.) The same examination
of Dr. Stewart’s registration data during early voting by race during
2008, 2010, and 2012 yields similar results. (Pl. Ex. 42 (Ex. 31).)
Dr. Gronke reports considerably more SDR registrants than Dr. Stewart,
which may be attributable to the fact that Dr. Gronke studied “new and
changed registrations,” (Pl. Ex. 40 at 35), while Dr. Stewart studied
only new registrants, (Pl. Ex. 42 at 43). The court used Dr. Gronke’s
data because it was the most beneficial to Plaintiffs. For example, Dr.
Stewart found that there were 38,697 SDR registrations by African
347
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African American turnout in general elections also exceeded white
turnout
in
2008
and
2012
even
when
all
SDR
registrants
considered voters but excluded from the turnout figures.
are
(Pl. Ex.
40 at 35 (Ex. 14); Pl. Ex. 242 at 161 (App’x U).)
Voting without SDR during general elections 200
2008
2010
2012
African
American
Votes
without
SDR
886,751
524,322
954,605
African
American
Turnout
without
SDR
62.11%
34.90%
60.94%
White
Votes
without
SDR
White
Turnout
without
SDR
%
Differential
3,048,148
2,038,747
3,129,170
60.15%
38.90%
58.11%
1.96%
-4.01%
2.83%
This does not support Plaintiffs’ claims that SDR was necessary
for African Americans to have equal opportunity to participate in
the electoral process, but rather is strong evidence that the rise
in African American participation is attributable to other factors
—
including
President
Obama’s
candidacy
and
North
Carolina’s
rising role as a battleground State.
Further,
the
proportion
of
African
American
registrants
Americans during early voting in the 2008 general election, (Pl. Ex. 42
(Ex. 31)), whereas Dr. Gronke reported that there were 90,603, (Pl. Ex.
40 at 35 (Ex. 14)).
200
The numbers in the accompanying table were derived simply by
subtracting the number of SDR registrants, by race, in the 2008, 2010,
and 2012 general elections, (Pl. Ex. 40 at 35 (Ex. 14) (Gronke)), from
the number of voters, by race, in those years, (Pl. Ex. 242 at 161 (App’x
U)). This number of course assumes, to Plaintiffs’ benefit, that every
SDR registrant voted. To get the voting rate without SDR, that number
was further divided by the VAP of each race. (Id.) The same discrepancy
described above between Dr. Gronke’s and Dr. Stewart’s data applied to
this calculation.
348
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during the 2014 early-voting period was virtually identical to the
proportion of African American registered voters as of 2014. (Def.
Ex. 309 at 76.)
This is perhaps why Plaintiffs were not able to
show that African Americans are habituated to SDR — the SDR data
suggest they are much more adaptable than Plaintiffs claim.
Accordingly,
while
the
inter-county
mover
and
incomplete
queue evidence favor Plaintiffs, they fail to carry Plaintiffs’
burden.
The evidence seriously undermines Plaintiffs’ argument
that SDR is responsible for African Americans’ lead over all races
in registration since 2008.
Plaintiffs further attempted to demonstrate a burden from the
removal of SDR and link it to social and historical conditions
through the use of several fact witnesses.
Plaintiffs’ witnesses
were variously African American, white, Hispanic, and “youth.”
Yet their testimony was mixed. For example, Carnell Brown (African
American) who is illiterate, attempted to vote in a county in which
he did not reside, rather than his county of residence.
at 14-15.)
(Pl. 680
SDR would not have permitted him to register or vote
at an early-voting site in a county in which he did not reside.
Most of the other voters testifying at trial had moved into
a
new
county
registrations.
in
North
Carolina
without
updating
their
voter
But the race of these voters played no role in
their failure to vote.
For example, two of the witnesses are enrolled in higher
349
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education programs.
William Kittrell, a college student and
aspiring English teacher, was unable to vote in 2014 because when
he moved from Vance County to Guilford County for college, he never
updated his voter registration.
(Doc. 330 at 37-42.)
He had been
living in Guilford County for a year before the election, but had
never availed himself of the opportunity to update his registration
during that time.
(Id. at 41–42.)
Quisha Mallette is a student
at the University of North Carolina School of Law.
at 7.)
(Pl. Ex. 792
She has lived in various parts of the United States
throughout her life.
(Id. at 8-10.)
Before starting law school,
she worked for AmeriCorps’ Literacy Council, managing a youth
academic support program.
(Id. at 10.)
absentee by mail in the past.
(Id. at 11.)
She may have voted
She testified that,
when she moved from Wake County to Orange County, she had attempted
to update her voter registration through the United States Postal
Service website, but she had not successfully done so.
(Id. at
16–18.)
Plaintiffs
also
presented
American service personnel.
the
testimony
of
two
African
Dale Hicks, a former sergeant in the
United States Marine Corps, lived in New York City before joining
the Marines as a data technician.
(Doc. 329 at 69-70.)
Since
leaving the Marines and moving to Raleigh, North Carolina, he has
been working as an IT professional.
(Id. at 70.)
He tried to
vote early in 2014 but had to cast a provisional ballot because he
350
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had not updated his registration since moving from Onslow County.
(Id. at 71-72.)
He thereafter registered to vote in Wake County,
where he resides.
(Id. at 75.)
Alexander Ealy, a current sergeant
in the United States Army, grew up in Tennessee and moved to New
York when he turned twenty-one.
(Pl. Ex. 713 at 6.)
When he
registered to vote in North Carolina, there was an issue verifying
his address because he did not denote his separate mailing and
physical addresses, as the form requires when applicable.
(Id. at
23-24, 32-37.) The United States Army and the United States Postal
Service appear to rely on these addresses being correct in order
for servicemen to receive their mail correctly.
Nadia Cohen is an Hispanic high school student from Cary,
North Carolina; at the time of trial she was enrolled to start
college at the University of North Carolina at Chapel Hill in fall
2015.
(Doc. 331 at 161-63.)
She turned eighteen in time to
qualify to vote in the 2014 general election, but she failed to
register in time.
(Id. at 163.)
In fact, when she testified at
trial, she still had not registered to vote.
(Id. at 169.)
When
Plaintiffs’ counsel asked her why not, she answered:
Well, first, I figured I would register when I get to
Chapel Hill since I am moving there, but, honestly, I am
a little discouraged. It’s not something that I’m, like,
running to go do. If I wasn’t raised to believe that
voting was so important, I probably wouldn’t. It’s just
— it just made things a lot more difficult for me than
it has to be.
(Id.)
Ms. Cohen learned that she had failed to register in time
351
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for the upcoming election from her father, who had looked up the
election rules online.
(Id. at 166–67.)
When asked why she had
not registered earlier, on her own, she responded,
I didn’t know there was a registration deadline.
I
didn’t know I could do — I couldn’t do same-day
registration.
And it’s not that I don’t, like, pay
attention to the news or anything. It is just my two
main sources of information, which are my parents and my
school, either didn’t know or didn’t tell me, or at least
not with enough time.
(Id. at 168.)
When asked if she had done any research into
registration deadlines at all before the 2014 general election,
she testified:
No. It’s not something that particularly interests me.
I just assumed that it would be as it had been for my
older brother and my older sister and my parents, you
know, a convenient location, you know, I wouldn’t have
to go out of my way. My parents registered when we moved
to North Carolina and they got their North Carolina
driver’s license. My brother registered in school. No
one had to go out of their way to register, and I thought
that, you know, it would be the same for me.
(Id. at 168–69.)
Of course, because Ms. Cohen would have been
eighteen by the time of the 2014 November general election, she
could have registered and voted during the primary earlier that
year.
N.C. Gen. Stat. § 163-59.
that.
(Doc. 331 at 172.)
But her father never told her
Ultimately, Ms. Cohen did not vote
anytime during 2014 because, in her words, “honestly, voting is
not my top priority throughout the year.
I’m busy with high school
and work and other after-school activities.
It is not — it is not
something that I feel like I need to always be invested in in order
352
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to know.”
(Id. at 173.)
These witnesses illustrate the type of testimony received at
trial.
Mr. Brown tried to vote in the wrong county, an issue that
no prior or current election mechanism in North Carolina could
have solved.
The college and law school students had all the
opportunity needed to update their registrations but failed to do
so.
In any case, they are not uneducated or socioeconomically
disadvantaged.
The military servicemen are not originally from
North Carolina and could not have been affected by any of the
State’s historical discrimination; moreover, it was clear from
their testimony that they had significant opportunity to update
their registrations.
Finally, as a capable individual accepted at
one of the top public universities in the country, Ms. Cohen makes
clear that, for some, given the myriad of options available in the
modern age, failure to register and vote is more a reflection of
motivation than ability.
(See Doc. 331 at 173.)
Historical
discrimination is an unpersuasive basis for claiming that any of
these
people
needed
or
wanted
to
use
SDR.
When
proving
discrimination, plaintiffs need not rely on statistical evidence
alone.
personal
They
may
present
experiences”
convincingly to life.”
in
witnesses
who
order
bring
to
testify
“the
about
cold
“their
numbers
Int’l Bhd. of Teamsters v. United States,
431 U.S. 324, 339 (1977).
In this case, however, the anecdotal
evidence tended to support Defendants’ statistical data analysis,
353
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 359 of 485
rather than Plaintiffs’.
Finally, the trial evidence showed that the State’s interest
in removing SDR was legitimate and certainly not tenuous.
The
State legitimately aimed to employ an election system that provided
meaningful opportunity for election officials to verify residency
through the statutory process, and the repeal of SDR served this
purpose.
SDR’s proximity to Election Day, inside the twenty-five
day registration cut-off, simply did not provide a sufficient
number of days for the mail verification process to work, and thus
effectively
nullified
North
Carolina’s
pre-existing
process for verifying a voter’s residence.
statutory
As a result, in 2012
at least 2,361 voters had their ballots counted although they later
failed mail verification and were declared ineligible voters. That
makes this case quite different from Husted, 768 F.3d 524, where
the timing of the period for SDR provided Ohio election officials
with at least thirty days to verify even those who registered and
voted through SDR and, consequently, the State could show no
difference between how traditional and SDR registrants would be
verified on Election Day.
Id. at 546-548.
In addition, and again
in contrast to Husted, the trial evidence in this case shows that
SDR placed additional burdens on CBOE staff that made it “generally
. . . not possible to process the number of [SDR-registrants]
within” the forty-eight hour period required by statute, despite
“hir[ing] additional staff” and “staff work[ing] as efficiently as
354
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they could.”
(Pl. Ex. 56 at 5); Cf. Obama for America v. Husted,
697 F.3d 423, 433-34 (6th Cir. 2012) (finding “no evidence that
local boards of elections [had] struggled to cope with early voting
in the past”).
Just as Husted was decided in light of Ohio’s local
conditions, this case too must be decided based on North Carolina’s
specific
circumstances,
including
its
statutory
scheme
for
verification of voter eligibility.
For these reasons, this court cannot conclude that the removal
of SDR leaves North Carolina with an election system that provides
an unequal opportunity for African Americans to register and vote
compared to other groups.
There was no showing that SDR increases
turnout generally or for African Americans; only disproportionate
use.
play.
Instead, other, larger influences were more substantially at
Plaintiffs also did not show that African American turnout
in 2014 would have been any higher had SDR been in place.
As such,
this court is left with the 2014 data that show that, without SDR,
African Americans participated at a higher rate in 2014 than they
did in the last comparable 2010 race with SDR in place.
On this
record, Plaintiffs have failed to prove that by returning North
Carolina’s registration system to that of 2007 – which had never
been claimed to discriminate against African Americans or any
minority group, and which is more generous than that of many States
– the General Assembly imposed a discriminatory burden on African
Americans or any other group.
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d.
OOP Voting
For approximately 120 years, North Carolina has assigned each
registered voter a precinct in which to cast a ballot.
OOP voting
changed that, however, permitting voters to cast a provisional
ballot at any precinct in the voter’s county of residence.
Even
when OOP voting was available, a voter could cast a full ballot
only
in
his
correct
precinct
on
Election
Day.
If
an
OOP
provisional ballot was used, only votes for races that would have
appeared
counted.
on
the
ballot
in
the
voter’s
not
precinct
were
This had the practical effect of disenfranchising OOP
voters on some down-ballot races.
do
correct
fall
within
the
After SL 2013-381, voters who
unreported
mover
exception
are
only
permitted to vote at their assigned precinct on Election Day.
Adoption of OOP was politically motivated to the extent the
Democratically-controlled
legislature
made
OOP
retroactive
to
legislatively overrule the North Carolina Supreme Court’s decision
in James and to secure electoral victory for Democratic candidates
in the 2004 election.
In doing so, proponents inserted into the
amendment a statement of retroactive legislative intent to aid
African Americans.
Yet, there was never a claim that North
Carolina was violating § 2 of the VRA or any other law prior to
OOP’s enactment.
Plaintiffs
In fact, the majority of States do not offer it.
demonstrated
that
African
Americans
356
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disproportionately used OOP voting when it was in place. 201
In
addition, African Americans cast a disproportionate share of the
provisional ballots cast in the wrong precinct in 2014.
that
African
transportation,
Americans
have
less
Plaintiffs
claim
they
access
are
to
Given
reliable
disproportionately
burdened by being required to appear at their assigned precinct.
For this reason, Plaintiffs claim disproportionate use reflects
need.
Plaintiffs, however, failed to show that voters’ assigned
precincts
are
not
residence or work.
on
average
the
closest
precinct
to
their
Instead, Plaintiffs presented evidence on the
average distance between the precinct at which OOP voters attempted
to cast a provisional ballot and those voters’ assigned precinct.
(Pl. Ex. 241 at 43.)
This study showed that in Mecklenburg and
Wake Counties in 2014, this distance was approximately six miles.
(Id.)
Defendants rebutted this study with evidence that a larger
percentage of African Americans cast a provisional ballot within
five miles of their assigned precinct than whites. (Def. Ex. 212A
at 18-19 & tbl. 23.)
In any event, as recognized in James, a
benefit of the precinct-based system is that it generally “puts
201
Plaintiffs also showed that Hispanics disproportionately used OOP
when it was in place.
(Pl. Ex. 245 at 24.)
But, as noted above,
Plaintiffs did not make a showing of official discrimination against
Hispanics. In addition, Hispanics are more likely to have access to a
vehicle than African Americans, (Pl. Ex. 45 at 13-14), and Plaintiffs
do not claim that OOP’s removal imposes a heavier burden on Hispanics
than African Americans.
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polling places in closer proximity to voter residences,” 359 N.C.
at 271, 607 S.E.2d at 644-45, and Plaintiffs have failed to show
that this is not the case.
That is, there was no evidence of the
distance from voters’ home or work to their assigned precinct
versus the one in which they voted.
To be sure, OOP voting was not significant to the parity in
political participation achieved by African Americans since 2008.
In 2008, African American turnout exceeded white turnout by 5.5%;
in 2010, white turnout exceeded African American turnout by 3.4%;
and in 2012, African American turnout exceeded white turnout by
6.8%.
(Pl. Ex. 242 at 161 (App’x U).)
By the court’s estimate,
if OOP ballots had not been counted in those years, African
American turnout would have exceeded white turnout by 5.4% in 2008;
white turnout would have exceeded African American turnout by 3.6%
in 2010; and African American turnout would have exceeded white
turnout by 6.8% in 2012. 202
In other words, not having OOP would
202
To obtain these estimates, the court subtracted the number of OOP
provisional ballots cast by race and year, (Pl. Ex. 42 at 98 (tbl. 14)),
from the number of voters by race and year, (Pl. Ex. 242 at 161 (App’x
U)). The court then divided by the VAP of each race in each applicable
year (Id.) Because Plaintiffs’ data on the number of OOP provisional
ballots excluded 35.4% of the records in the provisional ballot file
(the race of the voter was not indicated), the court followed Plaintiffs’
instruction and multiplied each number in Table 14 by 1.55. (Pl. Ex.
42 at 98 n.126 (“[T]he proper correction to apply is to multiply each
number by 1/.646, or 1.55.”).)
This also assumes, to Plaintiffs’
benefit, that OOP voters would not have been able to make it to their
correct precinct and vote.
The evidence demonstrated that most OOP
voters are much more capable than the court has assumed in its
calculation. (See Def. Ex. 343.)
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only have changed the turnout differential by .1% in 2008 .2% in
2010, and less than .1% in 2012.
(See Pl. Ex. 42 at 98 (tbl. 14)
& n.126; Pl. Ex. 242 at 161 (App’x U).)
In fact, OOP provisional
ballots have never constituted more than a fraction of a percentage
point of votes cast for either African Americans or whites.
(See
id.)
In League, the Fourth Circuit stated that “what matters for
purposes of Section 2 is not how many minority voters are being
denied
equal
electoral
opportunities
but
simply
that
‘any’
minority voter is being denied equal electoral opportunities.”
769
F.3d
at
244.
In
that
regard,
a
voting
law
cannot
countenanced merely because it affects relatively few people.
be
But
the court notes the figures here as to OOP only because courts
have found the number of voters affected relevant to each prong of
the § 2 analysis.
For example, the number of voters affected is
some evidence of the magnitude of the burden imposed.
See Frank,
768 F.3d at 748-49 (finding that new voting requirement was not an
obstacle to “a significant number of persons who would otherwise
cast ballots”); Daniel P. Tokaji, Applying Section 2 to the New
Vote Denial, 50 Harv. C.R.-C.L. L. Rev. 439, 487 (2015) (“A voting
restriction affecting more people imposes a greater burden (all
other things being equal) than one which affects fewer people.”);
cf. Florida, 885 F. Supp. 2d at 340 (“[W]hile the number of
affected voters will have an impact on the burden analysis . . .
359
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a voting change with a retrogressive effect does not warrant
preclearance merely because it affects a small number of voters.”).
In addition, the number of people affected is relevant to whether
any
burden
imposed
conditions.
can
be
linked
to
social
and
historical
For example, the fact that a much larger number of
African Americans endure socioeconomic disparities than the few
who utilized OOP suggests that something other than socioeconomic
disparities is causing those voters to utilize OOP. 203
In other
words, the number of voters affected is relevant to whether anyone
is being denied an equality of opportunity on account of a law’s
interaction with social and historical conditions.
Cf. Frank, 768
F.3d at 748-49.
Although
just
one
factor
under
the
totality
of
the
circumstances, the data suggest that African Americans have an
equal opportunity to participate in the electoral process without
OOP.
In addition, the relatively small number of individuals who
used
OOP
have
many
remaining
convenient
alternatives:
voting
during any of the ten days of early voting where they need not
vote at their assigned precinct (they can vote at any early-voting
center, the number of which SL 2013-381 increased), voting at their
203
For example, if a group with the same or similar characteristic
attempts to clear an alleged hurdle, and if less than a percent of the
group fails to do so, the following inferences are supported: (1) the
hurdle is not very difficult to clear for individuals with the shared
characteristic, and (2) the shared characteristic does not readily
explain why certain individuals cleared the hurdle and others did not.
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assigned precinct on Election Day, or casting an absentee ballot
by mail during the forty-five to sixty days available (depending
on the election).
In addition, a primary benefit of the precinct-
based system, as recognized in James, is that it generally places
voting locations closer to voters – a fact that Plaintiffs failed
to demonstrate was not true.
Beyond statistical data, Plaintiffs presented the testimony
of several voters who voted in the wrong precinct in 2014.
As
with SDR, these witnesses did not provide support for Plaintiffs’
claims.
Gwendolyn Farrington, a middle-aged African American woman,
voted a provisional ballot in the wrong precinct.
She did not
vote in the early-voting period, citing fatigue from her jobs,
where she works six days a week.
(Doc. 329 at 59.)
Yet, she chose
not to vote on her day off, a Sunday, because she wanted to spend
it resting.
(Id. 58–59.)
She chose not to vote by mail because
she prefers to vote in person.
(Id. at 55.)
On Election Day 2014,
instead of going to her assigned polling location, which she knew,
she went to the polling location closest to her work because she
did not think she could have made it to her assigned polling
location because she chose to provide transportation to her adult
children instead.
(Id. at 59-60, 66–67.)
In addition, her
assigned precinct was not assigned based on her current address,
but
was
linked
to
her
parents’
address
where
she
had
lived
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previously and which she had listed on her registration some four
years earlier.
(Id. at 66.)
Even though she had been living at
her 2014 address for three years, as of Election Day 2014, she
still had not updated her voter registration to reflect that
address.
(Id.)
It is difficult to say that any burden Ms.
Farrington felt is attributable to historical discrimination.
Terrilin Cunningham moved to North Carolina in 2012; she was
born and raised in Missouri, and then had lived in both Baltimore
and Pittsburgh before moving to North Carolina. (Doc. 330 at 164.)
When Ms. Cunningham lived in Missouri and Pennsylvania, she had to
vote in her assigned precinct on Election Day, as those States do
not offer OOP or early voting.
(Id. at 182-83.)
In 2012, she
voted early on a Sunday in North Carolina; she was surprised that
North Carolina offered Sunday voting because she had never heard
of such a thing before.
(Id. at 169-71.)
In 2014, Ms. Cunningham
had intended to vote early again, but she missed her chance because
of work and various unexpected doctors’ appointments. 204
172–73.)
(Id. at
Believing that she had to vote in her county but that
the precinct system would not matter for Election Day (just as it
did not matter for early voting in her 2012 experience), she tried
to vote in the wrong precinct on Election Day 2014.
(Id. at 176.)
204 Plaintiffs seem to suggest that Ms. Cunningham could have voted early
if the early-voting period had been longer, (Doc. 346 at 83), but there
is no evidence that a longer period would have helped.
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She ended up casting a provisional ballot that was not counted.
It was clear from her testimony that Ms. Cunningham is sufficiently
capable of determining her correct precinct, as her previous States
of residence had required.
It was further plain that there is no
evidence that Ms. Cunningham’s failure to vote successfully had
any connection with any effect of historical discrimination by the
State of North Carolina or anyone else.
Lue Alice Abercrombie, a disabled African American woman,
moved to North Carolina from Connecticut twenty years ago. 205
She
had never voted before the November 2014 election because she did
not know where to go.
(Pl. Ex. 712 at 10.)
Ms. Abercrombie
registered to vote at the NC DMV when she got her driver’s license.
(Id. at 17.)
On Election Day 2014, she went to vote at the same
precinct at which her fiancée was going to vote, though it was not
her assigned precinct and she had never voted there before.
at 11.)
(Id.
She learned that she was at the wrong precinct and that
her correct precinct would be closed by the time she could get
there.
(Id. at 12.)
She ultimately cast a provisional ballot
that was not counted.
Ms. Abercrombie has now learned where her
correct
precinct
elections.
is
and
says
she
can
get
there
for
future
(Id. at 18.)
Michael Owens, an African American man in his fifties, was
205
Consequently, she was not a discernable victim of North Carolina’s
historical discrimination.
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unable to vote on Election Day 2014.
(Doc. 334 at 148, 160, 153-
56.) For a temporary period including Election Day, he was without
a vehicle.
(Id. at 151-52.)
Mr. Owens’ former employer had closed
down and, because he lost employment, his vehicle was repossessed
in May 2014 when he ran out of savings.
(Id. at 149-51.)
Later,
Mr. Owens found a new job in Lumberton (in Robeson County).
at 150-51.)
(Id.
He lived and worked in Lumberton during the workweek,
but returned to Shannon (also in Robeson County) on the weekends
to be with his girlfriend and child.
(Id. at 151-52.)
On Election
Day 2014, when he tried to vote at a precinct in Lumberton, he
learned that he was in the wrong precinct; he had no way of making
it to his correct precinct in Shannon that day.
(Id. at 153-56.)
Since Mr. Owens was temporarily living outside of his precinct, he
could have avoided voting problems in the 2014 general election by
voting early or voting by absentee ballot.
Mr. Owens was familiar
with early voting, since he had voted early in the past.
159.)
car.
(Id. at
Later in November 2014, Mr. Owens was able to acquire a
(Id. at 158.)
Lumberton for work.
He now lives in Shannon and commutes to
(Id. at 158-59.)
He now knows that, if he
votes on Election Day in the future, he will need to vote in his
correct precinct.
Plaintiffs
(Id. at 159-60.)
only
presented
two
witness
who
claimed
their
correct precinct was further from their residence than the precinct
in which they cast provisional ballots in 2014, Timothy Washington
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and his wife, Yvonne Washington.
The couple’s correct precinct
was 1.3 miles from their home, while the incorrect precinct at
which they cast a provisional ballot in 2014 was 0.6 miles from
their home.
make
it
(Pl. Ex. 797 at 43-44.)
difficult
transportation.
for
them
to
Both have disabilities that
walk
and
(Pl. Ex. 679 at 39-40.)
rely
on
others
for
Ms. Washington is a
cancer survivor with asthma and Mr. Washington has suffered from
hip disabilities since birth that require him to use crutches.
(Pl. Ex. 797 at 8, 21.)
Ms. Washington testified that she will
never be able to walk to her correct precinct.
26.)
(Pl. Ex. 679 at
While OOP would make their burden less, the truth is that
even walking to the nearest polling location on Election Day in
2014 (still 0.6 miles) was itself a great difficulty for the
couple.
(Pl. Ex. 797 at 21-22.)
In fact, they were not able to
make it to the closest precinct without stopping to rest.
(Id.)
Their situation most persuasively demonstrates a need for a voting
mechanism than can be done from home, such as absentee mail voting.
If,
however,
they
find
mail
voting
to
be
inaccessible
or
unattractive, Ms. Washington testified that, although she did not
seek it out in 2014, her church would likely be able to provide
the couple with a ride to their correct polling place.
679 at 29-30.)
(Pl. Ex.
In short, walking to any precinct or polling
location does not appear to be a long-term solution for the couple.
In addition, the link between their difficulties and social and
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historical conditions was weak.
Mr. Washington’s hip disability
arose from when his mother “fell down the steps when he was born,
and she was carrying him.”
(Id. at 8.)
Moreover, Ms. Washington
only moved to North Carolina five years ago from Virginia, where
she voted five different times, and always in her correct precinct,
since Virginia does not permit OOP voting.
(Id. at 33, 36–37.)
For these reasons, having considered the totality of the
circumstances and in light of the State’s demonstrated substantial
interest in its precinct-based system as articulated by the Supreme
Court in James, this court cannot conclude that North Carolina’s
current electoral system without OOP presents African Americans
with an unequal opportunity to vote as compared to other voters.
e.
Pre-registration
From 2009 to 2013, sixteen-year-olds were permitted to preregister.
Even after SL 2013-381, seventeen-year-olds who will be
eighteen by the time of the general election are still able to
register starting sixty days before the related primary.
Gen. Stat. § 163-59.
N.C.
Plaintiffs argue that the elimination of
pre-registration disparately impacts African American and Hispanic
youth and imposes a severe burden on all youth.
(Doc. 346 at 95-
98.)
Plaintiffs demonstrated that pre-registration increases youth
turnout.
In addition, they demonstrated that African Americans
366
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disproportionately used pre-registration. 206
Plaintiffs, however,
did not link this disproportionate use to social and historical
conditions.
In fact, the literature addressing pre-registration
hypothesizes that “young people who are especially interested in
politics might be both more likely to pre-register and more likely
to vote.”
(Pl. Ex. 235 at 17.)
In addition, Plaintiffs’ own evidence demonstrated that the
benefits of pre-registration are race-neutral.
studies
of
Plaintiffs’
own
expert,
Dr.
In fact, the
Hillygus,
found
pre-
registration to be “equally effective for various demographic
groups, including white versus minorities.”
(Id. at 24.)
It may
be tempting to reason that if pre-registration increases turnout
and African Americans disproportionately used it, then African
Americans disproportionately benefited from it.
Hillygus’s own study rebuts this inference.
However, Dr.
Dr. Hillygus did not
just study whether those who pre-register are more likely to
vote. 207
Instead, her study included both those who pre-registered
and those who could have pre-registered in the context of the 2008
206
Plaintiffs
presented
some
evidence
that
Hispanic
youth
disproportionately used pre-registration, (Pl. Ex. 245 at 23), but this
court’s conclusions as to the race-neutral effect of pre-registration
applies equally to all minority groups.
207
Dr. Hillygus’s concern with studying just those who pre-register was,
as noted above, that pre-registrants may have characteristics that make
them both more likely to pre-register and more likely to vote. (Pl. Ex.
235 at 17 (“Put differently, those who preregistered and voted might
well have done so even if preregistration had not been in place.”).)
367
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presidential election.
(Id. at 22 (“[S]ome of those eligible to
preregister waited until they were older to register traditionally
. . . .”).)
This is why she speaks of her studied group as “those
who had the opportunity to preregister in 2008.”
added).)
In
this
sense,
it
appears
that
(Id. (emphasis
her
race-neutral
conclusion exists independent of whether one race pre-registered
more.
This is because, according to her, there are certain
benefits that flow from just being exposed to pre-registration
during an election period.
(See id. at 22-23 (fig. 7) (“Exposing
Youth to Preregistration Programs Increases Turnout.”); Doc. 331
at
197-98.)
Accordingly,
even
though
African
Americans
disproportionately used pre-registration, Dr. Hillygus’s study
suggests that the effect on youth turnout will nevertheless be
race-neutral.
(See Pl. Ex. 235 at 24; Doc. 331 at 199-200, 205
(“There [are racial] differences in the use that we saw in North
Carolina,
but
not
in
the
mobilization
effect.”).)
In
fact,
although Dr. Hillygus made many predictions about the effect of
pre-registration in North Carolina, she never claimed that it
disproportionately benefits African Americans.
(See Pl. Ex. 235
at 16; Doc. 331 at 199-200, 205.)
Finally, the evidence shows that pre-registration did not
clearly benefit either Democrats or Republicans.
14.)
(Pl. Ex. 235 at
In some years, Republicans had more pre-registrants than
Democrats, and in other years the reverse was true.
(Id.)
In all
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years, however, the number of unaffiliated pre-registrants was
greatest.
(Id.)
Accordingly,
circumstances,
having
Plaintiffs
considered
have
failed
the
to
totality
establish
of
the
that
the
removal of pre-registration imposes a discriminatory burden on
African Americans or any other racial group.
f.
Cumulative Effect
Finally, the court considers the cumulative impact of the
challenged provisions, 208 to the extent the evidence in the case
permits such consideration. 209
League, 769 F.3d at 242.
Unlike
their isolated analyses of each provision, Plaintiffs in the
section of their proposed findings of fact devoted to this topic
have provided little guidance and no empirical analysis of the
cumulative impact of the challenged provisions.
102-03; Doc. 419 at 55.)
(See Doc. 346 at
The court is thus left largely with its
own assessment.
208
Plaintiffs also challenge the removal of CBOE discretion to extend
voting for an extra hour on Election Day and the poll observers and
challengers provisions on § 2 grounds. However, they failed to present
evidence of any discriminatory burden as to either. Plaintiffs provided
no evidence that African Americans were disproportionately likely to
vote in the discretionary last hour of voting. In any case, the evidence
did show that the SBOE still has discretion to extend voting where there
is a loss of voting time. Nor did Plaintiffs provide any evidence that
observers or challengers abused their statutory authority so as to
disadvantage African Americans in 2014, or would do so in the future.
209
Where a new law involves repeal of prior provisions, the § 2 impact
inquiry as to the new law by definition involves consideration of the
cumulative impact.
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Plaintiffs argue that voters who “manage to register” with
the elimination of SDR “may now find themselves excluded because
of the photo ID requirement.”
(Doc. 419 at 55.)
This ignores the
reasonable impediment exception, as it will be applied.
For all
the reasons noted above, the voter-ID requirement, with a two-year
roll out, free ID, and the reasonable impediment exception, does
not impose a material burden on minorities’ right to vote.
There
is no evidence that the current photo-ID requirement will depress
turnout or interact with other challenged provisions.
Indeed, the
United States abandoned this claim.
In addition, the Supreme Court’s stay of the re-instatement
of SDR and OOP voting presents this court with a unique set of
data not ordinarily available in such cases.
Because the 2014
elections were conducted under SL 2013-381, the 2014 data permit
the court to see the actual – not merely estimated – cumulative
effect of the removal of all of the challenged provisions under
current election law.
As detailed above, those data show that
minority North Carolinians not only did not backslide under the
new law, but rather continued to increase their participation.
African Americans continue to hold a commanding lead over whites
in registration rates, and their turnout rates continue to increase
over comparable elections.
This is powerful evidence of the
cumulative effect of the law, see Purcell, 549 U.S. at 6 (Stevens,
J.,
concurring)
(preferring
“historical
facts
rather
than
370
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speculation”), and is persuasive proof that African Americans do
not suffer an inequality of opportunity under SL-2013-381.
The early-voting schedule provides in substance an equivalent
to, if not an actual improvement over, the former schedule.
North
Carolina voters still have eleven days to vote in person: ten days
of early voting, at more convenient hours, and Election Day.
They
may also vote by absentee ballot from forty-five to up to sixty
days before an election (depending upon the election).
Even
without
SDR,
African
Americans
have
substantial
opportunities to register to vote, as demonstrated by their growing
lead over whites in registration rates. 210
To the extent GOTV
efforts drove SDR results, such organizations have all year to
register voters and merely need to adjust their resources over the
balance of the year.
The 2014 results are evidence that they have
done so.
As
for
OOP
voters,
the
evidence
did
not
show
that
the
elimination of OOP provisional voting interacts significantly with
other challenged mechanisms of voting. SDR and OOP serve different
groups of people.
If an individual misses the registration cut-
off, OOP will not help them, as one must be registered to cast an
OOP
ballot.
Similarly,
given
that
OOP
voters
are
already
210
Voters who move inter-county within twenty-five days of Election Day
were never able to use SDR to vote in their new county because they
would not have satisfied the State’s eligibility requirement that they
be a resident of the county for thirty days prior to the election. N.C.
Gen. Stat. § 163-55(a).
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registered and thus complied with the twenty-five day cut-off, SDR
provides no benefit to them.
In short, SDR’s removal will not
create OOP voters, and OOP’s removal will not create SDR voters.
Further, the evidence showed that the vast majority of the
limited number of individuals who voted OOP did so not because
they found it difficult to use any of the many other voting options
available to them, but either because it was easier (an extra
convenience) or because they were inattentive to their assigned
precinct (which appears on their voter registration card).
Under
current law, former OOP voters may cast ballots in their correct
precinct on Election Day, outside their assigned precinct at any
early-voting site during any of the ten days of early voting, from
home using a mail-in absentee ballot, and at their old or new
precinct on Election Day if they are an unreported mover within
the county.
Finally, those who will be eighteen-years-old by Election Day
may still register when seventeen-years-old.
North Carolina even
permits seventeen-year-olds to register sixty days in advance of,
and
vote
in,
the
primary
for
that
general
election.
The
registration may be accomplished in any of the myriad of ways noted
above, and forms remain available at all public high schools,
public libraries, CBOEs, and on-line, in addition to many other
places.
As a result, the court finds that the cumulative effect of
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the provisions of SL-2013-381 and SL 2015-103 do not impose a
discriminatory burden on African Americans or any other group.
4.
Discriminatory Result: Conclusion
Having applied the two-element test from the Fourth Circuit
and
considered
the
totality
of
the
circumstances
through
an
“intensely local” analysis, the court finds that there has been no
violation of § 2 of the VRA.
This court has been careful not to
require Plaintiffs to show that African Americans “cannot register
or vote under any circumstance” or that voting mechanisms are
“practically unavailable” in order to establish a § 2 violation.
League, 769 F.3d at 243. Instead, it has considered the challenged
provisions separately and cumulatively, taking a functional view
of the political process.
But based on all these considerations,
Plaintiffs have not established that, under the electoral system
established by SL 2013-381 and SL 2015-103, African Americans or
Hispanics
“have
less
opportunity
than
other
members
of
the
electorate to participate in the political process and to elect
representatives of their choice.”
52 U.S.C. § 10301(b).
Rather than establish a § 2 violation, the evidence at this
court’s January trial established that North Carolina’s voter-ID
law with a reasonable impediment exception will not impose a
material burden on minority voters or deprive them of an equal
opportunity to participate in the political process.
In addition,
the evidence from this court’s July trial established that the
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many convenient registration and voting mechanisms that remain
under SL 2013-381 provide African Americans an equal opportunity
to participate in the political process.
As stated above, there
are simply very many easy ways for North Carolinians to register
and
vote
under
SL
2013-381.
In
truth,
North
Carolina’s
registration and voting options were quite generous prior to SL
2013-381
–
Plaintiffs
“progressive.”
even
referred
to
them
at
trial
as
But they nevertheless remain more than adequate to
provide an equality of opportunity to all groups of interested
citizens after SL 2013-381.
That said, a State is not entitled to “make changes for the
purpose
of
curtailing
black
voting”
simply
register and vote more frequently than whites.”
at 753-54.
because
“blacks
Frank, 768 F.3d
Here, however, the 2014 data have provided strong
evidence that African Americans have an equal opportunity under
the new law.
court
and
See id.
the
Fourth
At the preliminary injunction stage, this
Circuit
could
only
project
how
African
Americans would fare under SL 2013-381 based on their prior use of
the removed mechanisms.
The 2014 data permit this court to stop
speculating and observe real life results. African Americans fared
better in terms of registration and turnout rates in 2014, after
the challenged mechanisms were eliminated, than in 2010, when they
were in place.
In fact, not only did African American turnout
increase at a greater rate than other groups’ turnout in 2014 with
374
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SL 2013-381 in place, but that general election saw the smallest
white-African American turnout disparity in any midterm election
from 2002 to 2014.
(Def. Ex. 309 at 62; Pl. Ex. 229 at 7.)
This
is not dispositive, but it does seriously undermine Plaintiffs’
contention that African Americans lack an equal opportunity to
participate
in
the
political
process
without
the
removed
mechanisms.
While the educational and socioeconomic disparities
suffered by African Americans might suggest that the removed
mechanisms would disproportionately benefit African Americans,
this court cannot find an inequality of opportunity simply because
educational and socioeconomic disparities suggests one might exist
— there must actually be an inequality of opportunity.
LULAC, 999
F.2d at 867 (“[T]he Senate Report, while not insisting upon a
causal
nexus
between
socioeconomic
participation,
clearly
did
not
status
dispense
and
with
depressed
proof
that
participation in the political process is in fact depressed among
minority citizens.”).
The evidence shows that, at least as to
North Carolina’s current election system, African Americans are
equally as capable as all other voters of adjusting to SL 2013381.
Moreover, the data from when the removed mechanisms were in
place further bolster the reliability of the 2014 results.
As
shown above, Plaintiffs were unable to sustain their claim that
the removed mechanisms were responsible for the recent parity (much
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Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 381 of 485
less
lead)
in
political
participation
achieved
by
African
Americans.
Instead, there was strong evidence that other factors
were
substantially
more
at
play,
such
as
President
Obama’s
candidacy and North Carolina’s emergence as a battleground State.
In short, the data from when the removed mechanisms were in place
suggest that African Americans did not need the mechanisms to have
an equal opportunity, and the 2014 data confirm as much.
Further, this court accepts that many variables feed into
turnout and registration data. However, despite having the ability
to do so, Plaintiffs did not perform the analysis necessary to
separate out the causal effect of various factors.
Plaintiffs did
not do this analysis for the years leading up to SL 2013-381, nor
did they provide this court with analysis of what the 2014 data
would have been with the removed mechanisms in place.
decision
may
have
been
strategic,
as
the
available
This
evidence
suggests that the removed mechanisms were not responsible for the
parity in political participation achieved by African Americans.
Nevertheless, Plaintiffs bear the burden of proof in this case,
and Defendants cannot be blamed for this absence.
Finally, this court has considered the evidence with an
understanding
midterms.
that
presidential
elections
are
different
from
But, even having reviewed all of the evidence with that
caveat in mind, the court is not persuaded that Plaintiffs’ 2016
predictions will come to pass, either.
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For these reasons, Plaintiffs have failed to show that SL
2013-381 provides African Americans with “less opportunity than
other members of the electorate to participate in the political
process and to elect representatives of their choice,” 52 U.S.C.
§ 10301(b), and thus their § 2 claim must fail.
5.
Discriminatory Intent
Plaintiffs argue that they can prove a § 2 claim through
either the Gingles factors, traditional discriminatory intent law,
or both.
(Doc. 346 at 130-31.)
The court has already determined
that the Gingles factors as a whole do not favor the Plaintiffs.
The court’s conclusion regarding those factors would be similar
here in the discriminatory intent context, even when considered in
combination with the traditional intent principles.
Therefore,
the court turns to the traditional law of discriminatory intent,
developed primarily in the equal-protection context.
Discriminatory purpose “implies more than intent as volition
or intent as awareness of consequences.
It implies that the
decisionmaker, in this case a state legislature, selected or
reaffirmed a particular course of action at least in part ‘because
of,’
not
merely
‘in
identifiable group.”
spite
of,’
its
adverse
effects
upon
an
Pers. Adm’r of Massachusetts v. Feeney, 442
U.S. 256, 279 (1979) (citations and footnote omitted); see also
Veasey, 796 F.3d at 498-99 (“The appropriate inquiry is not whether
legislators
were
aware
of
[a
law’s]
racially
discriminatory
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effect, but whether the law was passed because of that disparate
impact.
Importantly, although discriminatory effect is a relevant
consideration, knowledge of a potential impact is not the same as
intending such an impact.” (citations and footnote omitted)).
If
“racial discrimination is shown to have been a ‘substantial’ or
‘motivating’ factor behind enactment of the law, the burden shifts
to the law’s defenders to demonstrate that the law would have been
enacted without this factor.”
228 (1985).
Hunter v. Underwood, 471 U.S. 222,
Thus,
there is an element of causation that is a necessary
part of plaintiff’s showing, especially when plaintiff
is trying to uncover the motivation of a multi-member
decisionmaking body, such as a zoning board. While a
plaintiff is not required to prove that “the challenged
action
rested
solely
on
racially
discriminatory
purposes,” proof that racial discrimination was a
motivating factor would not end the matter. Such proof
merely shifts the burden to the decisionmaking body to
demonstrate that “the same decision would have resulted
even had the impermissible purpose not been considered.”
Sylvia Dev. Corp v. Calvert Cty., 48 F.3d 810, 819 n.2 (4th Cir.
1995) (citations omitted).
According
to
the
Supreme
Court,
“Determining
whether
invidious discriminatory purpose was a motivating factor demands
a sensitive inquiry into such circumstantial and direct evidence
of intent as may be available.”
Vill. of Arlington Heights v.
Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977).
In making such
an inquiry, courts look to a non-exhaustive list of factors from
Arlington Heights.
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The first factor to be considered is whether the “impact of
the official action . . . ‘bears more heavily on one race than
another.’”
Arlington Heights, 429 U.S. at 266 (quoting Washington
v. Davis, 426 U.S. 229, 242 (1976)).
With regard to the removed voting mechanisms, Plaintiffs
point
to
their
strongest
disproportionately used them.
fact:
African
Americans
But, for the reasons explained
above, this does not mean that the impact of current law bears
more heavily on them.
Whether a change bears more heavily depends
on the options remaining.
Florida, 885 F. Supp. 2d at 383 (three
judge panel finding that changes to inter-county mover law “will
not
‘bear
more
heavily’
on
any
minority
group”
because
“the
evidence indicates that the changes will not have materially
adverse effects on the ability of minority voters to cast a ballot
and effectively exercise the electoral franchise”); Brown, 895 F.
Supp. 2d at 1246 (finding that “the evidence before the court does
not demonstrate that the changes will deny minorities equal access
to the polls”).
As stated above, the evidence demonstrated that
North Carolina’s remaining mechanisms continue to provide African
Americans with an equal opportunity to participate in the political
process.
Nevertheless, Plaintiffs claim the legislature was aware of
certain disparities in the use of the removed mechanisms and that
this evidences discriminatory intent.
Specifically, Plaintiffs
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claim that the General Assembly was aware that African Americans
disproportionately used early voting, SDR, and OOP and lacked a
qualifying photo ID. 211
There is no evidence that the legislature
had demographic data on the use of pre-registration.
(Doc. 346 at
59 (only claiming that legislators knew that African Americans
disproportionately
ballots).)
the
used
early
voting,
SDR,
and
provisional
There was, however, evidence that certain members of
legislature
requested
and
received
“provisional and one-stop voters.”
demographic
data
for
(Pl. Ex. 72 at 3; Pl. Ex. 385;
Pl. Ex. 459; Pl. Ex. 436; Pl. Ex. 437.)
Plaintiffs’
exhibits
demonstrate
that
in
January
2012,
legislative research staffer, Erika Churchill, requested from the
SBOE “a breakdown of the 2008 voter turnout, by race (white and
black) and type of vote (early and election day).”
at 3.)
(Pl. Ex. 437
The SBOE appears to have provided the requested data to
Ms. Churchill at the end of January.
(Id. at 1-2.)
2012, she requested the same data for 2010.
In February
(Id. at 1.)
She also
requested “similar information . . . on provisional ballots [for]
2008 and 2010.”
indicate
whether
(Id.)
the
Plaintiffs’ exhibits do not clearly
SBOE
ever
provided
the
data
from
Ms.
211
In their trial briefs, Plaintiffs limited their “knowledge” claim to
early voting and SDR.
(Pl. Ex. 285 at 47-48; Doc. 286 at 47-50.)
However, in their proposed findings of fact and conclusions of law,
Plaintiffs claim that “[l]egislators knew that African Americans
disproportionately relied on early voting, SDR, and provisional
ballots.” (Doc. 346 at 59 (emphasis added).)
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Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 386 of 485
Churchill’s February requests.
Ex. 459.)
(See Pl. Ex. 436; Pl. Ex. 437; Pl.
Instead, the last email in the email chain provided by
Plaintiffs is from Ms. Churchill to the SBOE clarifying her request
on provisional ballot data.
Plaintiffs’
information
exhibits
from
the
(Pl. Ex. 436.)
indicate
January
that
Further, even though
the
request,
SBOE
the
provided
exhibits
the
cited
in
Plaintiffs proposed findings of fact and conclusions of law do not
provide this data.
(See Doc. 346 at 59.)
Therefore, among the
thousands of pages of material the parties have submitted to the
court, it is difficult to evaluate the character of any data that
may have been received and transmitted to legislators as a result
of Ms. Churchill’s requests.
Plaintiffs’ exhibits also indicate that on March 5, 2013,
Representative Harry Warren and various other sponsors of HB 589
requested a cross-matching of registered voters who have “neither
a NC Driver’s License nor a NC Identification Card” and the “number
of one-stop voters and provisional voters.”
(Pl. Ex. 72 at 3-4.)
Representative Warren requested that both inquiries be broken down
by all possible demographics that SBOE captures, including “party
affiliation, ethnicity, age, gender, etc.”
(Id.)
He further
requested information on the capability of CBOEs to capture a
digital
photo
of
registrants
identification cards.
(Id.)
and/or
to
produce
any
type
of
Later that day, SBOE Director Gary
Bartlett provided a link where “[t]he data requested c[ould] be
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Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 387 of 485
found . . . [including] tabs that show[ed] summary counts based on
different demographics.”
active.
(Id. at 2-3.)
This link is no longer
Veronica Degraffenreid later sent Representative Warren
some “categorical statistics” that Director Bartlett had requested
she provide to Representative Warren.
(Id. at 2.)
Representative
Warren further requested that the categorical data be broken down
by county, which Ms. Degraffenreid provided.
While
this
court
accepts
that
(Id.)
Ms.
Churchill
and
Representative Warren requested demographic data on ID possession,
“one-stop voters,” and “provisional voters,” these requests are
not necessarily as suspect as Plaintiffs claim.
time
of
Representative
Warren’s
request
on
First, at the
March
5,
2013,
legislators would have been preparing for the first public hearing
on voter ID on March 12, 2013.
(See Pl. Ex. 127.)
As noted
herein, opponents frequently challenge voter-ID bills on the basis
of racial disparities in ID possession. Any responsible legislator
would need to know the disparities in order to account for such
challenges.
In fact, during the preliminary injunction stage of
this case, the United States would not tell this court whether it
would have been better or worse for the State not to have requested
demographic data.
(Doc. 166 at 219-20.)
Second, given that North
Carolina was subject to preclearance under § 5 when the demographic
data requests were made, legislators would have needed to know the
racial impact of the voting changes in order to evaluate whether
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Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 388 of 485
they were even feasible.
Carolina,
evaluating
In other words, when § 5 applied to North
racial
impact
was
a
prerequisite
to
evaluating the likelihood that any voting change would be precleared by the Attorney General.
seek
the
inference
that
Accordingly, while Plaintiffs
legislators
requested
demographic
information because they sought to discriminate against African
Americans,
alternative
explanations
are
considerably
more
persuasive.
Next,
Plaintiffs
presented
evidence
that
Director
Strach
emailed some data to Representative Lewis, one of the bill’s House
sponsors, on July 25, the day of the House concurrence vote.
Ex. 198.)
(Pl.
This data primarily consisted of the verification rates
for SDR in the 2010 and 2012 election and information about the
types of IDs presented by same-day registrants.
(Id. at 3-20.)
It
race
also
included
a
spreadsheet
that
contained
data
for
individual same-day registrants and whether those registrants were
verified.
(See id. at 14, 16.)
The report did not provide
aggregate percentages for SDR use by race.
(See id.)
In addition,
given that the report was not provided until the day of the House
concurrence vote, it is not possible that any disparities that
could be inferred from the individual voter data provided by Ms.
Strach were used in drafting HB 589.
Next, Senator Stein provided evidence of disproportionate use
during Senate debate of HB 589. Specifically, Senator Stein stated
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in debate that “[m]inorities take advantage
. . . of same day
registration . . . more than the general population.”
550 at 34-35.)
(Pl. Ex.
He also shared graphs indicating that 34% of the
nearly 100,000 individuals who used SDR in 2012 were African
American. 212
similar
(See Pl. Ex. 18, Ex. A at 6.)
evidence
on
early
voting
and
Senator Stein provided
stated
in
debate
that
minorities disproportionately used the removed seven days of early
voting.
(Pl. Ex. 550 at 34; Doc. 335 at 185.)
Senator Stein did
not provide any disparate use evidence for OOP or pre-registration.
(Pl. Ex. 550 at 34-35.) Given that HB 589 had already been drafted,
the
evidence
that
Senator
Stein
presented
in
debate
is
more
probative of the fact that the legislature enacted HB 589 despite
the disparities outlined, rather than because of them.
Finally, Plaintiffs argue that the legislature must have been
aware of OOP’s disproportionate use given that the legislature
that enacted OOP made the finding that “of those registered voters
who happened to vote provisional ballots outside their resident
precincts on the day of the November 2004 General Election, a
disproportionately high percentage were African American.”
N.C. Sess. Law 2, § 1.
2005
While it can be assumed that the General
212
In the debate, Senator Stein stated the 100,000 voter figure, (Pl.
Ex. 550 at 28), but he did not openly state the 34% figure, (see Pl. Ex.
202; Pl. Ex. 549; Pl. 550).
That figure was within one of Senator
Stein’s charts, which he evidently made available to other Senators
through their dashboards. (Doc. 335 at 185-86.)
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Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 390 of 485
Assembly was aware of its prior findings, it does not follow that
any future decision to reverse course evidences racial motivation,
especially given the substantial interests served by a precinctbased system endorsed by the Supreme Court in James.
Plaintiffs also argue that the foreseeable effect of the
photo-ID requirement of SL 2013-381 is further evidence of a
discriminatory
provisions. 213
intent
that
infects
the
other
challenged
Specifically, an April 2013 SBOE report found that,
of those who could not be matched to having a DMV-issued photo ID
213
Plaintiffs point to the legislature’s decision to entrust the
provision of no-fee ID to the DMV, about which they say there was
“widespread knowledge of dysfunction” at the time of SL 2013-381’s
enactment. (Doc. 419 at 70.) As noted above, sixteen counties do not
have a brick and mortar DMV licensing location.
These counties are
serviced, if at all, by mobile units. During the debate of SL 2013-381,
Representative Paul Tine stated on the House floor that two of the
counties he serves, Washington and Hyde, receive DMV mobile unit service
one or two days a month. (Pl. Ex. 138 at 68.) He further added that
the availability of DMV services was “actually lower” at that time, due
to mobile units being broken down.
(Id. at 68-69.)
At trial,
Commissioner Kelly acknowledged that when he was hired in October 2013,
the DMV’s computer system was outdated, DMV was unpopular with customers,
wait times were too long, continuing education of examiners was
insufficient, and the mobile unit fleet was either outdated or in
disrepair.
(Doc. 410 at 154-155, 195-198.)
There was no testimony
before the legislature that the DMV was dysfunctional in issuing IDs or
that this would contribute to the burden imposed upon voters.
Representative Tine’s critique was limited to the accessibility of DMV
locations in certain communities. (See Pl. Ex. 138 at 68-69.) But even
if legislators knew of problems at the DMV, either through personal
experience or common perception, the General Assembly’s decision to place
no-fee ID in the hands of the DMV is not substantial evidence of
discriminatory intent. First, if legislators were looking for an agency
with experience in issuing photo IDs, the DMV was an obvious choice.
Second, the two-year soft roll out substantially undermines Plaintiffs’
claim that the General Assembly intended to disadvantage voters by
forcing them to interact with the DMV.
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based on the DMV’s data, 33.8% were African American (compared to
their approximately 22% share of the population) and 54.2% were
white. 214
(Pl. Ex. 534 at 9.)
to
made
have
multiple
Members of the legislature appear
requests
for
demographic
data
on
ID
possession, including the March 5, 2013, request by Representative
Warren.
As indicated above, there are legitimate non-discriminatory
reasons to have made these requests.
In addition, the type of
disparity indicated by Plaintiffs’ data has existed in most cases
where a state’s ID scheme has been challenged. 215
See, e.g.,
214
Plaintiffs also rely on Dr. Stewart’s first no-match list as
additional evidence of the foreseeable impact of SL 2013-381. There,
Dr. Stewart was not able to match 397,971 (6.1%) registered voters to
an acceptable ID, 147,111 (10.1%) African Americans and 212,656 (4.6%)
whites.
(Pl. Ex. 242 at 38 (tbl. 7).)
As noted above, Defendants
dispute the validity of this analysis. It is without dispute that this
analysis did not include “refined” matching criteria that Dr. Stewart
now considers necessary. (Pl. Ex. 891 at 19 (tbl. 11).) In any case,
this court finds the April 2013 SBOE report to be the most probative
matching analysis for intent purposes (despite questioning the
reliability of all of the available no-match analyses). None of Dr.
Stewart’s no-match analyses existed when SL 2013-381 was enacted.
215
Plaintiffs also argue that African Americans are more likely to have
suspended or revoked licenses and that this somehow evidences
discriminatory intent. (Doc. 419 at 15.)
Plaintiffs claim that the
legislature was aware of this disparity due to its consideration of
another bill presented by Orange and Chatham County Assistant District
Attorney, Jeff Nieman. (Id.) Mr. Nieman’s bill sought to “remove the
automatic revocation for a conviction for driving while license revoked.”
(Doc. 409 at 124.) One of his key arguments was that those with low
socioeconomic status were more likely to end up with suspended licenses.
(Id. at 126-27.)
But even if legislators accepted this as true and
inferred that African Americans were more likely to have suspended
licenses, they could not have anticipated an impact under SL 2013-381
without also knowing that North Carolina law prohibits knowingly
possessing or displaying a suspended license.
N.C. Gen. Stat. § 2030(1). There is no evidence that this was before the legislature. (See
386
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Veasey, 796 F.3d at 505-06 (finding racial disparities in ID
possession but vacating and remanding the district court’s finding
of discriminatory intent); South Carolina, 898 F. Supp. 2d at 40
(finding racial disparities in ID possessions but concluding that
South
Carolina’s
ID
requirement
was
not
enacted
for
a
discriminatory purpose); cf. Frank, 768 F.3d at 752 (finding racial
disparities in ID possession but concluding that no § 2 results
violation existed). In fact, Dr. Stewart indicated at this court’s
January trial that ID possession disparities exist nationwide and
that he has yet to find a combination of acceptable photo IDs that
will make these disparities go away.
(Doc. 408 at 159-60.)
To
accept
but
of
this
as
not
only
necessary,
sufficient,
proof
discriminatory intent would likely invalidate voter-ID laws in any
State where they are enacted, regardless of the assortment of IDs
selected.
(See id.)
But Crawford rules that out, and the question
is whether the particular assortment of permissible IDs evidences
discriminatory intent, given the specific facts on the ground in
that State.
Crawford, 553 U.S. at 192-97.
Moreover, during the March 2013 hearings on the initial
version of the voter-ID requirement, the legislature received the
testimony of two witnesses who supported the need for a photo-ID
requirement.
One was Hans von Spakovsky, a senior legal fellow at
Doc. 419 at 15-16.) On its face, SL 2013-381 does not prohibit voting
with a revoked or suspended license. N.C. Gen. Stat. § 163-166.13.
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the Heritage Foundation who served in the U.S. Department of
Justice for four years enforcing voting rights laws, served two
years on the Federal Election Commission, and was a consulting
expert to the Carter-Baker Report.
(Def. Ex. 506 at 40.)
While
conceding there was no “massive” voter fraud, he urged that the
“potential for abuse exists,” noted instances of prior voter fraud,
cited polls “across ethnic and racial lines” showing support for
voter photo ID, and testified that claims of burdens imposed on
voters were substantially overstated. (See id. at 39, and attached
Statement at 2-5.)
He claimed that early voter-ID bills had
received bipartisan support in Kansas and Rhode Island, (id. at
39-40), and disagreed that photo ID reduces turnout among any
racial group, citing statistics and examples, (id. at 42-43,
Statement at 4).
For example, he claimed that turnout increased
in Georgia in 2012 after it implemented its voter-ID law, despite
decreasing
in
notable
States
without
including New York and California.
a
photo-ID
(Id. at 42.)
requirement,
He also cited to
Indiana, where he claimed Democratic turnout increased in the wake
of the State’s photo-ID requirement and President Obama became the
first Democrat to carry the State since 1964.
(Id. at 43.)
He
likewise argued that these turnout numbers were not anomalies
attributable
to
President
Obama,
as
he
claimed
that
African
American turnout in the 2010 midterm exceeded that of the 2008
election.
(Id.)
Mr. von Spakovsky also attacked the idea that
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the SBOE’s no-match list, which then contained over 613,000 voters,
was anywhere close to accurate.
(Id. at 43-50.)
(Of course, Dr.
Stewart’s revised no-match list proves as much.)
He claimed that
evidence from other States indicated that North Carolina’s voter
rolls were likely inflated and that this inflation was a probable
cause of the no-match result because a large share of those on the
no-match list were inactive voters.
(Id. at 43-47.)
He reported
that the no-match list in Indiana had been rejected because the
court found it unreliable, (id. at 44-45), and that despite large
no-match lists in Georgia and Kansas, relatively few voters had
actually sought photo-ID in those States, (id. at 49-50).
mind,
this
suggested
seriously inflated.
that
those
(See id.)
States’
no-match
In his
lists
were
As a final example, Mr. von
Spakovsky claimed that he himself would have appeared on the ”nomatch list,” as the name on his registration was “Hans A. Von
Spakovsky,” while his DMV issued ID listed his name as “Hans Anatol
von Spakovsky.”
(Id. at 49.)
He concluded his testimony by
claiming that other western democracies require voters to present
photo ID, including Canada and Mexico.
(Id. at 51.)
Francis De Luca, president of the Civitas Institute in North
Carolina, and who holds a master’s degree in political science,
provided similar testimony during the March 2013 hearings.
Ex. 507 at 14.)
(Def.
Mr. De Luca claimed that changes in American
society had made voting without a photo-ID requirement insecure.
389
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 395 of 485
(Id. at 15.)
He said that the “ability of poll workers to serve
as an effective check on voter impersonation” has been “rendered
obsolete”
by
urbanization
increases
and
in
mobility
early
of
the
voting
and
population.”
“the
increased
(Id.)
North
Carolina, he further noted, is no longer a rural state, and voters
are considerably less likely to vote in their home precincts than
in the past.
(Id.)
He also observed that poll workers do not
have access to voters’ signatures and, in any case, are not
handwriting experts.
(Id. at 17.)
Mr. De Luca further provided polling data indicating that
majorities of voters wanted an ID requirement.
(Id. at 18-19.)
He cited polls showing: “2 percent or less of registered voters
. . . lack a government-issued photo ID”; two-thirds of registered
voters support a photo-ID requirement; 70% “of all adults, not
just of registered voters,” support a photo-ID requirement; three
out of four voters responded that “requiring a photo ID would
increase the likelihood of them voting”; and, “when asked to
describe in their own words what would make elections more secure,
47 percent of voters volunteered that voter ID would make elections
more secure.”
(Id.)
Finally, Mr. De Luca claimed that voter
turnout was higher in Georgia in 2012 than in North Carolina, even
though Georgia had a photo-ID requirement in place and North
Carolina did not.
(Id. at 21.)
Regardless of whether or not the claims made by Mr. von
390
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 396 of 485
Spakovsky
and
Mr.
De
Luca
true, 216
are
the
reasonably have believed them to be true.
legislature
could
This is in large part
because Mr. von Spakovsky’s and Mr. De Luca’s ideas are consistent
with other authoritative sources.
A legislator could have looked
at the precipitous drop in the number of voters on the no-match
list from January 2013 (612,995) to April 2013 (318,643) and
credited Mr. von Spakovsky’s claims that the no-match process
grossly overestimates the number of North Carolinians who lack
photo ID.
The clear trend was that each time the no-match list
was revised, the number of no-matches fell substantially.
Ex. 891 at 4 (tbl. 2).)
This trend has continued through the
course of this litigation.
(Id. at 19 (tbl. 11).)
examination
analyses
of
no-match
(Pl.
could
Other courts’
likewise
legislators to doubt the accuracy of the process.
have
led
See, e.g.,
Billups, 554 F.3d at 1354 (11th Cir. 2009); Billups, 504 F. Supp.
2d at 1360-63, 1378 & n.6 (N.D. Ga. 2007) (noting that the
presiding
Judge
Moreover,
Mr.
“appeared
De
Luca’s
on
one
claim
of
the
no-match
lists”).
that
the
modernization
and
urbanization of the American electorate has made poll workers an
obsolete guard against voter impersonation is consistent with the
Carter-Baker Report.
See Carter-Baker Report, at 18.
Finally,
that the benefits of a photo-ID requirement outweigh any burden on
216
They were not offered for their truth or falsity, but only for notice
and intent.
391
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voters is part and parcel of Crawford, where the Supreme Court
recognized
that
discriminatory)
requirement.
there
reasons
are
many
for
a
legitimate
legislature
(i.e.,
to
enact
nonan
ID
Crawford, 553 U.S. at 192-97.
Plaintiffs rely on the opinions and studies of Dr. Lichtman,
offered as an expert in American political history, electoral
analysis,
and
historical
and
quantitative
methodology.
Dr.
Lichtman was offered to show that SL 2013-381 was passed with
intent to discriminate against African Americans.
This court does
not credit Dr. Lichtman’s opinions for several reasons. First,
although
Plaintiffs
argued
otherwise,
Dr.
Lichtman’s
opinions on legislative intent, like those of
ultimate
Plaintiffs’ other
two experts on legislative intent, Drs. Steven Lawson 217 and Morgan
Kousser, 218 constituted nothing more than his attempt to decide the
ultimate issue for the court, rather than assisting the trier of
fact in understanding the evidence or any fact at issue.
See Fed.
R.
gathered
Evid.
702(a).
Basically,
all
of
these
experts
evidence, principally from newspaper and magazine articles, that
they believed fit under each Arlington Heights factor.
Then, they
opined on how the Arlington Heights analysis, (or their variant of
it) ought to be performed, but contended they were doing so to
217
Professor Emeritus of History at Rutgers University.
18.)
(Doc. 334 at
218
William R. Kenan, Jr. Professor of History and Social Science at the
California Institute of Technology. (Doc. 330 at 42-43.)
392
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 398 of 485
determine intent “as historians.”
The court doubts seriously that this is the proper role for
expert
testimony.
“[O]pinion
testimony
that
states
a
legal
standard or draws a legal conclusion by applying law to the facts
is generally inadmissible.”
550, 562 (4th Cir. 2006).
United States v. McIver, 470 F.3d
The Fourth Circuit identifies “improper
legal conclusions by determining whether the terms used by the
witness have a separate, distinct and specialized meaning in the
law different from that present in the vernacular.” Id. (citations
and internal quotation marks omitted).
Such improper conclusions
include whether a defendant’s actions constituted “extortion” or
“deadly force,” whether there existed a “fiduciary relationship,”
and whether a product is “unreasonably dangerous.”
includes
intent,
whether
legislative
or
Id.
otherwise,
It also
being
a
conclusion that is “particularly within the province of the trier
of fact.”
Allen Organ Co. v. Kimball Int’l, Inc., 839 F.2d 1556,
1567 (Fed. Cir. 1988); accord Superior Prod. P’ship v. Gordon Auto
Body Parts Co., 784 F.3d 311, 323-24 (6th Cir. 2015); United States
v. Rahman, 189 F.3d 88, 136 (2d Cir. 1999); DePaepe v. Gen. Motors
Corp., 141 F.3d 715, 720 (7th Cir. 1998); Woods v. Lecureux, 110
F.3d 1215, 1220 (6th Cir. 1997); Salas v. Carpenter, 980 F.2d 299,
305 (5th Cir. 1992); United States v. Benson, 941 F.2d 598, 604
(7th Cir. 1991); Price v. Austin Indep. Sch. Dist., 945 F.2d 1307,
1317-18 (5th Cir. 1991); SMD Software, Inc. v. EMove, Inc., 945 F.
393
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 399 of 485
Supp. 2d 628, 643 (E.D.N.C. 2013); Safeway, Inc. v. Sugarloaf
P’ship, LLC, 423 F. Supp. 2d 531, 538–39 (D. Md. 2006); Smith v.
Wyeth-Ayerst Labs. Co., 278 F. Supp. 2d 684, 699–700 (W.D.N.C.
2003); U.S. Gypsum Co. v. Lafarge N. Am. Inc., 670 F. Supp. 2d
768, 775 (N.D. Ill. 2009).
Second,
and
independently,
the
court
disregards
Dr.
Lichtman’s opinions because his approach was single-minded and
purposefully excluded evidence that contradicted his conclusions.
By way of example, Dr. Lichtman did not include in his report, nor
did he find relevant during trial, the fact that North Carolina
had a two-and-a-half-year roll out of the photo-ID requirement,
which was plainly designed to make it as simple as possible for
citizens to comply with the requirement.
In fact, to the best of
Dr. Kousser’s knowledge, North Carolina had “the longest rollout
period of any state that has enacted a photo-ID” requirement, of
which there were many in 2012.
(Doc. 330 at 92 (Dr. Kousser: “I
looked at other states, and they were required quickly.
They
didn’t have an intervening election before they were required to
go into effect.”); Doc. 333 at 192 (Dr. Lichtman: “I didn’t do a
state-by-state comparison [of roll out periods].”); see also Def.
Ex. 2 at 4–5.)
In this respect, SL 2013-381 is substantially
consistent with the bipartisan recommendation by former President
Carter and former Secretary of State Baker that States adopt a
photo-ID requirement for voting and that it be implemented with
394
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 400 of 485
notice over time to ease the transition.
Carter Baker Report, at
18-19; see Crawford, 553 U.S. at 193-94. 219
Although quick to compare North Carolina’s law to that of
other jurisdictions, Dr. Lichtman did so selectively, comparing
only claimed negative aspects and omitting any positive aspect,
such as the photo-ID soft roll out and voter education campaign.
Similarly, he ignored the exemption in the photo-ID requirement
for
curbside
voters,
of
which
African
Americans
make
up
a
disproportionately large share, because, in his words, this is
“such a small group.”
(Doc. 333 at 184.)
In 2014, there were
37,396 curbside voters, of which 17,415 were African American.
(Doc. 332 at 110-11.) 220
Third, Dr. Lichtman refused to consider that legislators can
have legitimate policy differences over these election mechanisms
219
In fact, Justice Breyer based his objection to the Indiana voter-ID
law in Crawford in part on the fact that Indiana failed to follow this
recommendation
of
the
Carter-Baker
Report,
whose
findings
he
characterized as “highly relevant to both legislative and judicial
determinations of the reasonableness of a photo ID requirement.”
Crawford, 553 U.S. at 238-41 (Breyer, J., dissenting). He also objected
to what he saw as Indiana’s failure to abide by the Carter-Baker Report’s
other condition - that IDs “be easily available and issued free of
charge.” Id. at 238-39. As noted herein, SL 2013-381 alleviates the
cost of obtaining an ID for those who need to obtain one. Compare N.C.
Gen. Stat. § 130A-93.1(c) (waiving the usual ten dollar fee for obtaining
a birth certificate or marriage license if a voter declares she needs
such a document in order to vote), with Crawford, 553 U.S. at 239 (noting
that those needing a birth certificate in Indiana would still have to
pay the State’s usual twelve dollar fee, and the indigency exception
required voters to travel to the county clerk’s office or CBOE after
each election to sign an affidavit).
220
By contrast, there were only 1,387 OOP ballots excluded from Election
Day in 2014. (Pl. Ex. 689.)
395
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unrelated to race, given historical evidence of problems with their
use and implementation, such as with SDR and OOP.
This is
surprising given that Dr. Lichtman is himself a politician and a
former
Democratic
Maryland.
candidate
for
the
United
States
Senate
in
(Doc. 333 at 173.)
Fourth, at trial Dr. Lichtman practiced a propensity to
respond to questions not with responsive answers, but with nonresponsive
demonstrated
important.
attempting
arguments
a
supporting
willingness
to
his
opinions.
obfuscate
when
He
detail
also
became
(E.g., Doc. 342 at 166-70, 172-75 (Dr. Lichtman:
to
avoid
acknowledging
that
he
lacked
personal
knowledge of SEIMS and the data extraction performed by a third
party, Mr. David Ely, who “does the data work for [him]”).)
In
short, he presented as an advocate, leaving the court at a loss
for where facts left off and advocacy began.
The court has
substantial questions about his credibility and has difficulty
relying on much of his testimony.
The most substantial piece of evidence put forth by Dr.
Lichtman was that certain forms of ID that were retained by SL
2013-381 — DMV IDs, expired IDs for those over age seventy, U.S.
passports, and veteran and military IDS — “provide relatively
greater access to IDs for whites,” while the forms of ID not
retained by SL 2013-381 — student IDs, government employee IDs,
public assistance IDs, and expired IDs — “provide relatively
396
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 402 of 485
greater access to IDs for African Americans.”
(Pl. Ex. 231 at 99
(tbl. 32); Pl. Ex. 716, AL 6; Doc. 419 at 19-20.)
There is no
evidence, however, that the legislature had data showing that
government employee IDs or expired IDs were disproportionately
held by African Americans.
It would have been reasonable for the
legislature to view expired IDs as less secure, and to strike a
balance by allowing them for those over seventy but not allowing
them for younger individuals.
assume
that
those
over
After all, it is reasonable to
seventy
are
more
likely
than
younger
individuals to suffer from negative health that would make a DMV
visit, or continued driving, more difficult.
Second, although
Representative Lewis sought data on the number of student IDs
created and the percentage of those who were African American, the
data that he was provided actually suggested that African Americans
were less likely to hold college IDs. 221
Further, the legislature
221
Representative Lewis’s original request was for system-wide numbers.
(Pl. Ex. 334 at 2.) But given that the University of North Carolina did
not have a way to pull the numbers for all seventeen campuses,
Representative Lewis was provided an estimate. (Id. at 1.) Given that
“you have to have [a student ID] for everything — library, food, etc.,”
the university system reasoned that an adequate approach would be to
provide numbers on the enrollment of African American students. (Id.)
Accordingly, Representative Lewis was informed that African Americans
were 8.9% of students at UNC-Chapel Hill and 21.1% of students at the
UNC System as a whole. (Id.) If Dr. Lichtman is correct that African
Americans are more likely to be enrolled in public colleges and
universities in the State than whites (and thus, by inference, more
likely to possess college IDs from those institutions), (see Pl. Ex.
716, AL 6; Pl. Ex. 231 at 50-51), then this result is counterintuitive
given the educational disparities put forth by Plaintiffs in this case.
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Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 403 of 485
offered at least plausible reasons for excluding student IDs: (1)
there was inconsistency in the way college IDs were done, (Pl. Ex.
202 at 68-69), and (2) permitting student IDs would be redundant
because some schools require a photo ID to get a student ID, (Pl.
Ex. 138 at 13). 222
Nevertheless, the removal of public assistance
IDs is somewhat suspect.
While there is no evidence of public
assistance ID possession rates in this case, and no evidence that
such data were before the legislature, a reasonable legislator
aware
of
the
socioeconomic
disparities
endured
by
African
Americans could have surmised that African Americans would be more
likely to possess this form of ID.
However, as a whole, the IDs
retained and removed by SL 2013-381 are not nearly as suspect as
Plaintiffs claim.
For all of these reasons, the impact from implementation of
SL
2013-381
does
not
significantly
favor
a
finding
of
discriminatory purpose.
The next factor to be considered is whether there is “evidence
of a ‘consistent pattern’ of actions by the decisionmaking body
disparately impacting members of a particular class of persons.”
Sylvia, 48 F.3d at 819.
As set out above, North Carolina’s past
is mired by official discrimination against African Americans
222
See infra Part II.D (Twenty-Sixth Amendment analysis).
398
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 404 of 485
involving the General Assembly.
However, there is little evidence
of official discrimination since the 1980s. 223
See supra Part
II.A.2.b.
The next factor to be considered is the “historical background
of the decision, which may take into account any history of
discrimination by the decisionmaking body or the jurisdiction it
represents.”
Sylvia, 48 F.3d at 819.
This encompasses “the
specific sequence of events leading up to the particular decision
being challenged, including any significant departures from normal
procedures.” Id. Plaintiffs urge the court to find discriminatory
intent based on the timing and character of amendments to SL 2013-
223
Although not addressed by the parties, the court is aware that North
Carolina has been accused of considering race as part of the
redistricting process after the 1980s. See supra note 138. Many of
these cases involved accusations that the State had improperly enhanced
minority voting power.
See supra note 138 (discussing Bartlett v.
Strickland, 556 U.S. 1, 8 (2009); Shaw v. Hunt, 517 U.S. 899, 906 (1996)).
Courts examining North Carolina’s current redistricting efforts have
reached differing conclusions as to the role that race played in the
creation of those districts. Compare Harris v. McCrory, No. 1:13cv949,
2016 WL 482052, at *2, *21 (M.D.N.C. Feb. 5, 2016) (finding that certain
congressional districts were drawn primarily on the basis of race but
expressly declining to make a finding as to whether the State acted in
good faith); id. at *23 (Osteen, J., concurring in part and dissenting
in part) (noting that the plaintiffs “[c]onceded at trial they did not
seek to prove any ill-intent”), with Dickson v. Rucho, __ N.C. __, 781
S.E.2d 404, 441 (2015) (finding no federal constitutional violation for
several State congressional districts, including the districts at issue
in Harris). But even if recent redistricting efforts indisputably proved
that that the legislature was willing to consider race when it was not
required to do so, that would not change the result here in light of the
legitimate interests served by SL 2013-381 and the other considerations
discussed herein. Moreover, this issue is of limited probative value
to any discriminatory impact claim because there is no evidence that
recent redistricting efforts had any effect on the socioeconomic
conditions of minorities.
399
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 405 of 485
381 following the Supreme Court’s Shelby County decision.
Originally,
HB
589
requirement to voting.
was
anything
Representative
but
Rick
on
adding
a
photo-ID
It was debated over a few weeks in the
House, where it originated.
received
focused
There is no contention that the bill
full
Glazier,
consideration
who
strongly
in
the
opposed
House.
the
bill,
testified that he felt that “[f]or a large bill,” HB 589 received
up to this point “the best process possible” in the House, one he
characterized as “excellent.”
(Doc. 165 at 56-57.)
HB 589 then passed to the Senate on April 25, 2013, where it
remained in the Senate Rules Committee.
At the time, the Supreme
Court had heard argument on a challenge to the constitutionality
of
the
formula
the
VRA
used
to
jurisdictions subject to preclearance.
determine
the
“covered”
Many of North Carolina’s
counties were covered jurisdictions.
On June 25, the Supreme Court issued its decision in Shelby
County,
declaring
the
preclearance
coverage
formula
to
be
unconstitutional because, among other things, it was based on
historical conditions in the 1960s and failed to take into account
States’
current
conditions.
The
next
day,
Senator
Apodaca,
Republican Chairman of the Rules Committee, publicly stated, “I
think we’ll have an omnibus bill coming out” or words to the effect
that the Senate would move ahead with the “full bill.”
81, 714.)
(Pl. Exs.
It was not until July 23, however, that an expanded
400
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 406 of 485
bill, including the election changes challenged in this case, was
released.
As detailed in the factual findings above, the bill was
debated over portions of the next three days and ultimately passed
both houses on July 25.
Plaintiffs find racial motivation in the way the General
Assembly enlarged the bill after Shelby County.
In the words of
their expert, Dr. Lichtman:
The H.B. 589 was substantially changed after the Shelby
decision . . . . The timing is of crucial significance
here. Because the Shelby decision relates only to race,
and if, in fact, these subtractions and additions had
nothing
to
do
with
race
and
were
clearly
nondiscriminatory, then the timing would not have to
wait until the issuance of the Shelby decision to make
these fundamental changes in H.B. 589 and, of course,
without going through the same extended, exacting
process.
(Doc. 333 at 106.)
But this is not the only, or even the most
persuasive, explanation for the enlargement’s proximity to Shelby
County.
Because
Shelby
County
removed
North
Carolina
from
preclearance, it greatly altered the burden of proof calculus for
North Carolina legislators considering changes to voting laws.
Despite Dr. Lichtman’s characterization of the case, prior thereto
legislators still would have had to demonstrate that the changes
were not retrogressive – something that, while perhaps easier now
with the 2014 data, assuredly would have been hotly contested by
opponents.
It would not have been unreasonable for the North
Carolina Senate to conclude that passing the “full bill” before
401
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Shelby County was decided was simply not worth the administrative
and financial cost of seeking permission from the United States.
In addition, opponents of SL 2013-381 made clear at the time that
North Carolina still faced being sued under § 2 of the VRA, and it
would not be unreasonable for the legislature to have believed
that some voting changes may survive a § 2 challenge but not one
under § 5, especially given the shifted burden of proof and the
uncertainty of § 2’s application to the removal of only recentlyadopted voting mechanisms.
On this front, it is highly relevant
that proponents of the bill had received in their deliberations an
analysis
of
other
legal
challenges
to
voter
photo-ID
laws
indicating that such laws passed muster with the courts.
–
(See
Def. Ex. 507 at 35-36 (De Luca Report).) Further, while Plaintiffs
portray the law’s expansion from sixteen to fifty-seven pages as
significant, as noted above the provisions challenged in the
present
lawsuit
and
the
voter-ID
requirement
comprise
approximately fifteen of HB 589’s fifty-seven pages, nine of which
related to voter ID and virtually all of which had been debated
before Shelby County.
(See Pl. Ex. 107.)
Moreover, all changes
to the original version of the bill were highlighted in the draft
bill.
(See id.)
It is also not accurate to say that HB 589
contained novel ideas that opponents were unprepared to address,
as virtually all of the changes were the subject of prior and
pending bills.
402
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Next, Plaintiffs contend that in enacting HB 589, the General
Assembly
departed
legislation.
from
the
normal
(Doc. 346 at 136.)
procedural
sequence
for
But their experts and fact
witnesses (including Democratic members of the General Assembly)
all
concede
that
the
General
Assembly
acted
within
all
the
procedural rules when it enacted HB 589; not a single opponent
raised a point of order.
(See, e.g., Doc. 330 at 94–96 (Dr.
Kousser); Doc. 333 at 215–18 (Dr. Lichtman); Doc. 334 at 62–63
(Dr. Lawson); Doc. 335 at 193–94 (Sen. Stein); Doc. 336 at 37–38
(Rep. Michaux).)
According to Senator Stein, in some respects,
even more process was accorded the opponents of HB 589 than was
required by the Senate’s rules.
(Doc. 335 at 209–10 (noting that
Senate Rules Committee chairman allowed ten members of the public
to speak on HB 589, even though Senate rules do not require public
comment).)
In every respect, the legislation was considered and
passed in accordance with the procedural protections of the formal
legislative rules.
Plaintiffs further contend that, even so, the proponents
nevertheless departed from general custom and practice. They argue
that the bill was “rushed” through both chambers “in only three
days, without sufficient time or opportunity to assess on the
record the likely impact of the bill.”
(Doc. 346 at 136.)
Given
that formal rules were followed, this claim in essence is that the
process for the bill was unusual for a bill of this magnitude.
403
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 409 of 485
(See Doc. 165 at 67 (Rep. Glazier: “I was shocked by it, not by,
in some respects, some of the provisions, but by the -- and, again,
my comments on the floor that night made it clear -- by the
process”), 69 (“[t]he process this bill got was nothing more than
what we give to a golf cart bill”); Pl. Ex. 18 at 3 (Sen. Stein:
describing the Senate proceedings as “irregular for a bill of this
magnitude”).)
The trial evidence revealed that these claims, when
evaluated in the light of contemporary legislative process, are
weak.
First, if these claims were true, it would have been odd for
the Senate Minority Leader, Martin Nesbitt, a Democrat, to have
declared at the end of the debate, as he did: “Thank you, Mr.
President; Mr. President and members of the Senate, we’ve had a
good and thorough debate on this bill over two days.
sense of history.
We’ve had a
I think we’ve reviewed the bill in great detail.
I think everyone in the room knows what we’re doing now.”
Ex. 550 at 90–91.)
(Pl.
In fact, every opponent of HB 589 was given an
opportunity to voice any opposition openly on the floor of each
chamber to the point that their criticisms became repetitive.
Further, as noted previously, many of the amendments to HB
589 were drawn from several bills already introduced and pending
in the General Assembly.
disclosed
in
a
combined
See supra Part I.B.2.
bill,
some
of
the
Although not
changes
reflected
continuations of debates that had been ongoing for years and were
404
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 410 of 485
far from secret.
(Pl. Ex. 789 at 30-31 (former member of the
House, Carolyn Justice) (“[T]hese things that were eventually
added in the Senate were not new surprising ideas.
pieces of other bills.”).)
They were
This is demonstrated by the fact that
once the Senate introduced the newly-amended version of HB 589,
opponents had already prepared their opposition.
The very next
day, Senator Stein opposed the bill presenting data, charts, and
statistics prepared by advocacy groups.
24.)
(See Pl. Ex. 18 at 17-
This suggests strongly that they had been monitoring the
bills in the hopper and were prepared to oppose them.
The evidence at trial further showed that the process known
as “gut-and-amend” used to transform the voter-ID bill into the
bill that became SL 2013-381 is not uncommon in the General
Assembly.
(Doc. 164 at 133 (Senator Blue, an opponent of the bill:
acknowledging that gut-and-amend happens “quite a bit” and “too
often” in the General Assembly).)
Such a process occurs because
the General Assembly must meet a “cut-off” date – known as the
“cross-over date” - by which a piece of legislation must be
approved by one chamber lest it die for the remainder of the
session.
(Id.
at
131-33.)
Plaintiffs’
legislator-witnesses
admitted that it is not uncommon for a bill to return to its
originating house with significant material not originally part of
the bill.
(Id. at 133; Doc. 165 at 85-88 (Rep. Glazier).)
Plaintiffs focus on the three days of consideration the bill
405
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received in July 2013 as being abrupt.
This, of course, ignores
the extensive debate and consideration the initial voter-ID bill
received
in
the
spring,
which
opponents
acknowledged
was
“excellent,” (Doc. 165 at 56-57), as well as Senator Nesbitt’s
contemporaneous statements in July.
As noted, the vast majority
of the bill, as amended, restated prior law or dealt with issues
not under contention now.
The three days of debate in July focused
almost exclusively on the few amendments at issue here.
Moreover,
trial evidence revealed other bills of similar import that moved
on faster tracks.
For example, in 2003, the Democratically-
controlled General Assembly passed a redistricting bill in a
special session that drew complaints on the floor about the way it
was considered and the quick process it received.
(Doc. 336 at
45–52 (Rep. Michaux); Def. Ex. 217 at 8-10 (former Rep. Carolyn
Justice).)
It passed nevertheless.
HB 589 received considerably
more debate and public comment.
Plaintiffs also argue that only one member of the House spoke
in favor of HB 589.
(Doc. 346 at 70.)
While it is true that only
Representative Lewis spoke in the House before the vote to concur
in the Senate’s changes, several Republican senators spoke in favor
of the bill both during the Senate Rules Committee meeting and
during the two Senate floor sessions.
4.)
(See generally Doc. 134-
Additionally, the initial bill was debated over several
committee sessions and a floor session in March and April 2013.
406
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(See generally Pl. Exs. 127-134.)
It is not necessarily nefarious
that no Republican in the House other than Representative Lewis
rose to speak in favor of the bill when it was late in the evening,
the caucus knew it had the votes to pass the bill, and the end of
the legislative session was approaching. 224
Next, in considering the process a bill receives, it is
relevant
whether
any
“ameliorative”
amendments
or
amendments
proposed by the bill’s opponents were accepted.
See Veasey, 796
F.3d
1246-49.
at
511;
cf.
Brown,
895
F.
Supp.
2d
at
Most
significantly, Senator Stein, a Democrat and opponent of HB 589,
proposed the same-hours requirement for early voting that was
overwhelmingly approved.
As noted above, this amendment ensured
that voters retained the same number of aggregate hours as under
the previous early-voting schedule.
There is no indication that
the proponents accepted this amendment for any reason other than
because they agreed with the interests the amendment advanced.
The Senate also accepted an amendment dealing with electioneering
from Senator Dan Blue (Democrat), (Pl. Ex. 550 at 82–83), and two
amendments from Senator Clark (an African American Democrat) to
facilitate the use of absentee voting during the early-voting
period, (Pl. Ex. 202 at 23-29).
224
Indeed, an opponent of the bill candidly testified at the hearing
that, had he been the lawyer for the Republicans, he would have similarly
advised the strategy to avoid further discussion. (Doc. 165 at 70.)
407
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The final Arlington Heights factor examines “contemporary
statements by decisionmakers on the record or in minutes of their
meetings.”
Sylvia, 48 F.3d at 819.
The most probative statements
come from the proponents, not opponents, of the bill.
See, e.g.,
Butts v. City of New York, 779 F.2d 141, 147 (2d Cir 1985); Veasey,
796 F.3d at 502 (collecting cases).
Statements from no more “than
a handful” of the bill’s proponents are also of limited probative
value.
Hunter v. Underwood, 471 U.S. 222, 228 (1985) (quoting
United States v. O’Brien, 391 U.S. 367, 383–84 (1968)).
Moreover,
statements by proponents should generally be contemporaneous with
the legislature’s consideration of the bill rather than post facto
statements by the bill’s proponents.
Barber v. Thomas, 560 U.S.
474, 485-86 (2010) (“And whatever interpretive force one attaches
to legislative history, the Court normally gives little weight to
statements, such as those of individual legislators, made after
the bill in question has become law.”); Veasey, 796 F.3d at 502
(collecting cases).
Plaintiffs argue that HB 589’s proponents’ statements on the
floor are pretextual for racial animus and addressed problems that
were “merely imaginable.”
(Doc. 346 at 137.)
As the court’s
analysis of the ninth Gingles factor has shown, see supra Part
II.A.2.j, the contemporaneous justifications for the changes to
408
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the early-voting schedule, and the removal of SDR, OOP, 225 and preregistration 226 were non-tenuous.
objections
have
election
data.
contemporaneous
been
subsequently
Defendants
justifications
In addition, the opponents’
proved
also
for
the
inaccurate
by
later
offered
non-tenuous
voter-ID
requirement,
namely establishing integrity and confidence in the electoral
process.
(Pl. Ex. 202 at 3); Crawford, 553 U.S. at 204.
Finally, the court has considered the cumulative evidence
Plaintiffs have presented on intent under the totality of the
circumstances.
It is, of course, possible that an action may
appear legitimate when considered in isolation but discriminatory
when considered with other related decisions.
Indeed, here,
Plaintiffs argue that HB 589, when considered as a whole, evidences
discriminatory intent to suppress voting.
Taken as a whole, SL 2013-381 enacted many changes to North
Carolina’s election laws that are not challenged here, suggesting
225
The contemporaneous justification offered for the repeal of OOP voting
was described as “basically mov[ing] the law back to the way it was prior
to 2005.” (See Pl. Ex. 202 at 12.) The court interprets this as a
reference to the precinct-based system affirmed and justified by the
Supreme Court in 2005 in James.
Given the James decision’s ample
discussion of the benefits of a precinct-based system, and given that
no legislator in the House or Senate openly opposed the removal of OOP
voting during the legislative debate, (see, e.g., Doc. 335 at 208), the
brevity of this explanation is understandable.
226
Although the contemporaneous justification offered for the removal of
pre-registration was weaker than for early voting, SDR, or OOP, as noted
above, there is no evidence that the legislature had before it data on
the use of pre-registration by race.
409
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strongly that those were legitimate, non-discriminatory revisions.
The State’s proffered justifications for the combined mechanisms
under
review
here
are
consistent
with
the
larger
purpose
of
achieving integrity, uniformity, and efficiency in the political
process.
Collectively, the changes were designed to make early-
voting locations more numerous and evenly distributed and voting
hours more uniform; reduce the number of individuals who forego
traditional registration (where they can be subjected to statutory
mail verification) and instead register and vote too close to
Election Day such that their vote is counted despite later failing
mail verification; re-establish the benefits of a precinct-based
system recognized in James; reduce voter confusion among preregistrants; and, as recognized in Crawford, promote the integrity
and reliability of the electoral process while increasing public
confidence
in
North
Carolina’s
electoral
implementation of a voter-ID requirement.
system
through
These are legitimate
and consistent interests.
Plaintiffs charge that — because the common theme is that SL
2013-381 removed multiple voting procedures that African Americans
disproportionately used — the legislature must have meant to
disenfranchise African Americans.
Because the court finds that
early-voting availability remains materially the same under the
new law, this charge is leveled principally at SDR and OOP.
In
light of the whole trial record, the court cannot infer a racial
410
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motive
given
the
consistency
and
legitimacy
of
the
State’s
proffered justifications, the relatively recent implementation of
these mechanisms, and the evidence that voters were knowingly
exploiting SDR and OOP in increasing fashion so as to undermine
the benefits of traditional registration (statutory verification)
and precinct management that proponents claim to protect.
In sum, there was evidence that the legislature had data on
disparate use of early voting, SDR, and OOP by African Americans,
although some of the data were not provided until after HB 589 was
drafted and introduced; there is no evidence that the legislature
had
demographic
data
on
the
use
of
pre-registration.
The
legislature had data that African Americans disproportionately
lacked DMV-issued IDs.
But, as noted above, there were legitimate
non-discriminatory reasons to request demographic data for each of
the voting changes, especially prior to Shelby County when § 5 was
in force.
Finally, Plaintiffs presented evidence that the forms
of ID not retained by HB 589 were more available to African
Americans, but given the evidence that has been shown to have been
before
the
legislature,
the
only
form
of
ID
for
which
the
legislature plausibly could have inferred disproportionate use was
public assistance IDs.
By
contrast,
the
legislature
justifications for the actions taken.
offered
non-tenuous
In fact, with regard to
voter ID, early voting, SDR, and OOP, this court has found the
411
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 417 of 485
justifications offered to serve substantial State interests.
addition,
in
implementing
the
voter-ID
In
requirement,
the
legislature provided for a two-year implementation to give notice
and
made
voter
IDs
available
for
free,
consistent
with
recommendations and the spirit of the Carter-Baker Report.
In
practice, this meant that the legislature attempted to soften any
burden imposed by the ID requirement by giving voters over two
years to acquire a free ID.
Further, the bill was passed under
ordinary legislative rules. All opponents were permitted to speak,
and several amendments were accepted, including a significant one
from Senator Stein that ameliorated the asserted burden imposed by
the reduction in early-voting days.
What remains under the law
provides
and
all
voters
with
an
equal
participate in the political process.
ample
opportunity
to
But even if this court had
concluded that HB 589 results in an inequality of opportunity, the
countervailing evidence nevertheless compels the conclusion that
HB 589 was enacted in spite of, not because of, this impact.
Having considered the entire record as a whole, this court is
not persuaded that racial discrimination was a motivating factor
of HB 589.
Accordingly, Plaintiffs have failed to establish that
the legislature acted with discriminatory intent.
6.
Additional Problems with the § 2 Results Claim
The above analysis is sufficient for the court to find that
Defendants are is entitled to judgment on Plaintiffs’ § 2 results
412
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claims.
However,
there
are
two
additional
problems
with
Plaintiffs’ results claims.
At trial, the court pressed Plaintiffs as to, assuming it
were to grant injunctive relief, how it would measure the quantum
of relief necessary to provide them “equal opportunity,” keeping
in mind that the State has the right to propose a proportional
remedy.
Plaintiffs were unable to articulate a response, other
than to urge return of the repealed mechanisms, or suggest that
the parties may reach a settlement.
(Doc. 343 at 26-35.)
As the
court inquired, if there is no way to know when voting rights are
in parity, how does one determine whether there is a violation?
(Id. at 35.)
In an apparent response to the court’s concern, Plaintiffs
set out the following theory of § 2 in their post-trial briefing:
A Section 2 case looks forward — to “what the right to
vote ought to be.” [Reno v. Bossier Parrish Sch. Bd.,
528 U.S. 320, 334 (2000)]. In many Section 2 cases, the
standard, practice, or procedure that affords all
citizens an equal opportunity to participate will be one
that has never before been implemented by the
jurisdiction because the jurisdiction has historically
never provided minority citizens with the equal
opportunity to participate and elect representatives of
their choice. Put somewhat differently, Section 2 does
not require that plaintiffs identify a preexisting
practice within the jurisdiction to serve as a
“baseline” against which the challenged practice should
be measured.
That being said, the Supreme Court in
Bossier Parish made clear that where a Section 2 claim
alleges that a change to an existing practice violates
Section 2, a court can look to the prior practice as
part of the results test inquiry.
In this case, the
fact that North Carolina successfully used SDR, OOP, 17
413
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 419 of 485
days of early voting, and preregistration over several
election cycles makes these practices highly appropriate
to use an illustrative example because, unlike a
hypothetical, the feasibility of, and results under,
these practices are known and documented.
(Doc. 346 at 122.)
Consistent with this position, Plaintiffs
contend that SDR permitted African Americans and Hispanics to
register on a “more equal” basis with whites.
(Doc. 346 at 124.)
Plaintiffs never state that the voting mechanisms in place prior
to SL 2013-381 provided an equal opportunity to African Americans
and other disadvantaged groups.
Instead, under Plaintiffs’ theory
of the case, even though North Carolina was a covered jurisdiction
for fifty years under the VRA subject to DOJ supervision, the State
has
never
offered
an
equal
opportunity
for
minorities
to
participate in the electoral process.
Of course, this theory conflicts with the data since 2000,
even without Plaintiffs’ preferred voting procedures.
Moreover,
it presents an elusive basis for fashioning an appropriate remedy.
While this court does not suggest that a plaintiff is entitled to
no relief simply because under his theory of the case the remedy
would
not
be
complete,
the
fact
remains
that
in
this
case
Plaintiffs’ failure to offer a principled, non-arbitrary way to
grant
relief
is
part-and-parcel
of
their
inability
to
show
inequality of opportunity.
Vote dilution cases offer an illustration of the type of
problem that granting relief in this case would involve. In Holder
414
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v. Hall, the Supreme Court rejected a § 2 claim challenging the
size
of
a
governing
authority
for
lacking
any
“reasonable
alternative benchmarks.” 512 U.S. 874, 885 (1994). There, African
American plaintiffs brought a § 2 claim to the use of a single
commissioner to govern the county.
Id. at 876–77.
the practice in Bleckley County since 1912.
Such had been
Id.
In 1985, the
Georgia legislature authorized, but did not mandate, the county to
adopt
a
multi-member
county
commission
consisting
commissioners elected from single-member districts.
In
a
referendum,
the
electorate
rejected
the
of
five
Id. at 877.
change.
Id.
Plaintiffs claimed that, under the single-member district plan,
African Americans could constitute a majority in one district.
Id. at 878–79.
The Supreme Court rejected this challenge and discussed the
differences between § 2 and § 5 of the VRA throughout the opinion.
In the plurality opinion, Justice Kennedy explained that § 2
requires plaintiffs to prove “a reasonable alternative practice as
a benchmark against which to measure the existing voting practice.”
Id. at 880.
“In certain cases,” Justice Kennedy noted,
the benchmark for comparison in a § 2 dilution suit is
obvious. The effect of an anti-single-shot voting rule,
for instance, can be evaluated by comparing the system
with that rule to the system without that rule.
But
where there is no objective and workable standard for
choosing a reasonable benchmark by which to evaluate a
challenged voting practice, it follows that the voting
practice cannot be challenged as dilutive under § 2.
415
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 421 of 485
Id. at 880–81.
Turning to the particular claim at issue, Justice
Kennedy explained that there “is no principled reason why one size
[governing
authority]
should
benchmark for comparison.”
be
picked
Id. at 881.
over
another
as
the
The challengers gave
several reasons for choosing the five-commissioner benchmark, but
the
Court
rejected
them
all,
noting
that
there
must
“convincing reason” for choosing a particular benchmark.
be
a
Id. at
882 (“One gets the sense that respondents and the United States
have chosen a benchmark for the sake of having a benchmark.
But
it is one thing to say that a benchmark can be found, quite another
to give a convincing reason for finding it in the first place.”).
The Court rejected the notion that retrogression could be
imported from the § 5 context into the § 2 context to establish a
benchmark, explaining the differing purposes of the two sections.
Id. at 883–84.
Justice Kennedy then observed,
Retrogression is not the inquiry in § 2 dilution cases.
42 U.S.C. § 1973(a) (whether voting practice “results in
a denial or abridgement of the right of any citizen of
the United States to vote on account of race or color”);
S. Rep. No. 97–417, p. 68, n. 224 (1982) U.S.C.C.A.N.
1982, p. 177 (“Plaintiffs could not establish a Section
2 violation merely by showing that a challenged
reapportionment or annexation, for example, involved a
retrogressive effect on the political strength of a
minority group”).
Unlike in § 5 cases, therefore, a
benchmark does not exist by definition in § 2 dilution
cases.
And as explained above, with some voting
practices, there in fact may be no appropriate benchmark
to determine if an existing voting practice is dilutive
under § 2. For that reason, a voting practice that is
subject to the preclearance requirements of § 5 is not
necessarily subject to a dilution challenge under § 2.
416
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 422 of 485
Id. at 884.
Justice O’Connor, in her concurrence, agreed with Justice
Kennedy, observing that, “to determine whether voters possess the
potential to elect representatives of choice in the absence of the
challenged structure, courts must choose an objectively reasonable
alternative practice as a benchmark for the dilution comparison.”
Id. at 887 (O’Connor, J., concurring in part and concurring in the
judgment).
could
be
She rejected the challengers’ notion that a benchmark
established
possibilities
[of
a
in
Holder
governing
inherently standardless.”
because
body’s
Id. at 889.
the
size]
“wide
makes
range
the
of
choice
She also rejected the
notion that the search for a benchmark should even be limited to
the experiences of Georgia, wondering whether there should not be
a twenty- or forty-member commission as could be found in some
other States.
Id.
Finding no way to determine a benchmark, she
concluded that the challengers “do not explain how common an
alternative
practice
must
be
before
it
can
be
a
reliable
alternative benchmark for the dilution comparison, nor do they
explain where the search for alternative benchmarks should begin
and end.”
Id. at 890. 227
227
Justice Thomas wrote a separate concurrence, joined by Justice
Scalia, rejecting the notion that vote dilution claims are cognizable
under § 2, though he also seemed to agree with the reasons given by the
plurality. Id. at 891, 945 (Thomas, J., concurring in the judgment).
The opinions of Justices Kennedy and O’Connor are controlling since they
417
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Subsequently, in Reno v. Bossier Parish School Board, a
majority of the Court further explained the differing benchmarks
at issue in cases under § 2 and § 5:
The term “abridge,” however — whose core meaning is
“shorten” — necessarily entails a comparison. It makes
no sense to suggest that a voting practice “abridges”
the right to vote without some baseline with which to
compare the practice. In § 5 preclearance proceedings
— which uniquely deal only and specifically with changes
in voting procedures — the baseline is the status quo
that is proposed to be changed: If the change “abridges
the right to vote” relative to the status quo,
preclearance is denied, and the status quo (however
discriminatory it may be) remains in effect. In § 2 or
Fifteenth Amendment proceedings, by contrast, which
involve not only changes but (much more commonly) the
status quo itself, the comparison must be made with a
hypothetical alternative: If the status quo “results in
[an] abridgement of the right to vote” or “abridge[s]
[the right to vote]” relative to what the right to vote
ought to be, the status quo itself must be changed. Our
reading
of
“abridging”
as
referring
only
to
retrogression in § 5, but to discrimination more
generally in § 2 and the Fifteenth Amendment, is faithful
to the differing contexts in which the term is used.
528 U.S. 320, 333–34 (2000) (alternation in original; citations
and footnote omitted).
Thus, in § 2 cases, Plaintiffs must prove
what the right to vote “ought to be.” 228
are based on narrower grounds.
228
In its now vacated opinion, the Sixth Circuit distinguished these
cases as being in the vote dilution context. Citing the text of § 2,
the court reasoned:
vote denial claims inherently provide a clear, workable
benchmark. Again, under Section 2(b), the relevant inquiry
is whether minority voters “have less opportunity than other
members of the electorate to participate in the political
process and to elect representatives of their choice.” 42
418
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Gingles itself requires plaintiffs to prove, as an initial
matter, three preconditions not found in the text of the VRA:
First, the minority group must be able to demonstrate
that it is sufficiently large and geographically compact
to
constitute
a
majority
in
a
single-member
district. . . . Second, the minority group must be able
to show that it is politically cohesive. . . . Third,
the minority must be able to demonstrate that the white
majority votes sufficiently as a bloc to enable it . . .
usually to defeat the minority’s preferred candidate.
478 U.S. at 50–51.
The preconditions require plaintiffs to show,
from the outset, whether they have a colorable vote-dilution injury
that can be remedied by § 2.
Growe v. Emison, 507 U.S. 25, 39–41
(1993) (“Our precedent requires that, to establish a vote-dilution
claim with respect to a multimember districting plan (and hence to
justify a super-majority districting remedy), a plaintiff must
prove three threshold conditions . . . .
Unless these points are
established, there neither has been a wrong nor can be a remedy.”);
Nipper v. Smith, 39 F.3d 1494, 1530, 1533 (11th Cir. 1994) (en
banc) (“The first Gingles precondition, informed by the second,
dictates that the issue of remedy is part of the plaintiff’s prima
facie case in section 2 vote dilution cases. . . .
[Holder v.
U.S.C. § 1973(b) (emphasis added).
The benchmark is thus
quite straightforward — under the challenged law or practice,
how do minorities fare in their ability “to participate in
the political process” as compared to other groups of voters?
Husted, 768 F.3d at 556 (emphasis in original). Of course, vote dilution
and vote denial claims derive from the same statutory text. Reno does
not speak to vote dilution claims but by its own terms addresses § 2
claims generally, and Holder v. Hall interpreted the same statutory text.
419
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 425 of 485
Hall] also confirms that, from the inception of a section 2 case,
the existence of a workable remedy within the confines of the
state’s system of government is critical to the success of a vote
dilution claim.
relevant
at
the
The absence of an available remedy is not only
remedial
stage
of
the
litigation,
but
also
precludes, under the totality of the circumstances inquiry, a
finding of liability.”).
There is a similar problem in this case, particularly insofar
as Plaintiffs’ theory of the case is that they will be “more equal”
if the removal of the voting mechanisms are enjoined.
Section 2
calls for “equal opportunity,” not “more equal opportunity.”
This
court has no way to assess where “more equal” — but nevertheless
allegedly discriminatory — ends and the “equal opportunity” § 2
mandates begins.
This is a significant problem given that the
scope of any remedy imposed by this court “must be proportional to
the scope of the violation, and the order must extend no further
than necessary to remedy the violation.”
Brown v. Plata, 131 S.
Ct. 1910, 1940 (2011); accord Crawford, 553 U.S. at 203; Freeman
v. Pitts, 503 U.S. 467, 489 (1992); Milliken v. Bradley, 418 U.S.
717, 750 (1974); Swann v. Charlotte-Mecklenburg Bd. of Ed., 402
U.S. 1, 16 (1971); Veasey, 796 F.3d at 518-19 & n.37; Frank, 768
F.3d at 755.
For example, Plaintiffs fail to articulate any measure for
how long an early-voting period must run or how many days should
420
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 426 of 485
be included.
seventeen
If Plaintiffs do not have an equal opportunity with
days,
might
they
need
twenty
days?
If,
instead,
Plaintiffs have an equal opportunity with seventeen days, is it
possible that they still have an equal opportunity with eleven
days?
What about thirteen or fifteen?
As in Holder v. Hall, the
number of days of early voting is ultimately arbitrary on this
record.
If the court were to examine the practices in other
States, as Justice O’Connor did in Holder, it would likewise find
no consensus at all.
(See Def. Ex. 270 at 20, 23.)
Plaintiffs
can provide no evidence or standard for this court to select a
different
period.
The
inquiry
under
Plaintiffs’
theory
is
inherently standardless.
SDR presents the same issue.
As the court could not order
North Carolina to provide any more days of SDR than is necessary
to remedy the violation, would equality of opportunity be achieved
only with SDR on every day of early voting?
If so, how many?
Under Plaintiffs’ theory, seventeen days of SDR would still be
insufficient.
Indeed, Plaintiffs cite registration itself as the
largest “impediment” or “barrier” to voting, (e.g., Doc. 331 at
215), so would Plaintiffs’ theory not similarly require North
Carolina to eliminate any registration deadline altogether, like
North Dakota has done?
Or, because the evidence showed that EDR
was associated with increased turnout, and Plaintiffs’ evidence
showed
that
provisional
ballots
cast
for
“no
record
421
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 427 of 485
of
registration” on Election Day in 2014 were disproportionately
African American, (Pl. Ex. 689), what is the principled basis to
preclude
requiring
North
Carolina
Plaintiffs’ theory of § 2?
from
adopting
EDR
under
On the present facts, Plaintiffs’
theories of recovery are limited only by their present request for
relief,
not
by
any
principled
measurement
of
equality
of
opportunity.
OOP voting and pre-registration present similar difficulties
under Plaintiffs’ theory.
Before SL 2013-381, voters could only
vote in an unassigned precinct on Election Day if they at least
showed up in the correct county.
But if the elimination of OOP
voting imposed a discriminatory burden, there is no basis for
thinking
that
the
county
discriminatory burden.
months
of
restriction
did
not
also
impose
a
Regarding pre-registration, how many extra
pre-registration
are
required
to
provide
equal
opportunity?
All of these qualitative issues with the relief sought by
Plaintiffs also give rise to a serious temporal problem.
Absent
an identifiable standard for measurement of relief proportional to
the violation, how long should an injunction remain in place?
Under the old law, African American registration rates already
exceeded that of whites, and turnout exceeded that of whites in
presidential
elections.
Under
SL
2013-381,
African
American
registration continues to exceed that of all others, and turnout
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exceeds that of comparable previous elections under the old law.
Would the injunction stay in place until all racial socioeconomic
disparities disappear?
If the Plaintiffs’ theory of § 2 is
correct, and their evidence in this case suffices for a § 2
violation, then this court would need to issue an injunction for
an indefinite period without any articulable basis for measuring
its successful attainment.
so.
But this court has no authority to do
Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1,
551 U.S. 701, 760 (2007) (Thomas, J., concurring); Freeman, 503
U.S. at 495; Bd. of Educ. of Oklahoma City Pub. Schs. v. Dowell,
498 U.S. 237, 249 (1991); City of Richmond v. J.A. Croson Co., 488
U.S. 469, 498 (1989); Wygant v. Jackson Bd. of Educ., 476 U.S.
267, 276 (1986); Pasadena City Bd. of Ed. v. Spangler, 427 U.S.
424, 436–37 (1976).
During closing arguments, the court reiterated its concerns
over all of these questions should Plaintiffs’ theory of the case
prevail.
Counsel for DOJ expressed that this case presents a
“unique situation,” given that minority turnout and registration
rates exceed those of whites.
(Doc. 343 at 121.)
When the court
asked how it would know when to dissolve any injunction it issued,
and after much pressing, (id. at 121–29), the best direction
counsel advised was: “Well, you’re the ultimate[] fact finder, so
you’ll know it when you see it.” (Id. at 125.) To date, Plaintiffs
have not provided any better guidance, and the court cannot imagine
423
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a workable standard under Plaintiffs’ theory, either.
In the end, however characterized, Plaintiffs’ inability to
articulate a principled way for this court to properly redress
their alleged injury is highly problematic, not just for this case,
but for the fabric of the law.
See, e.g., Bartlett v. Strickland,
556 U.S. 1, 17-18 (2009) (noting the “need for workable standards”
that produce a “rule [that] draws clear lines for courts and
legislatures alike”); Holder, 512 U.S. at 885 (“With respect to
challenges to the size of a governing authority, respondents fail
to explain where the search for reasonable alternative benchmarks
should begin and end, and they provide no acceptable principles
for deciding future cases.”).
For, while the consideration here
is intensely local, it surely must make sense in the scheme of the
VRA, which applies nationally.
In grappling with the difficult questions this case presents,
the court pressed Plaintiffs on its concern that their theory
threatens a “one-way ratchet” voting mechanism that, once enacted,
could not practically be removed. Did Congress intend this result?
Cf. Nixon v. Mo. Mun. League, 541 U.S. 125, 137 (2004) (eschewing
federal creation of a “one-way ratchet”).
Federal courts do not
normally consider that Congress would pass a statute carrying such
burdensome disincentives.
See Tex. Dep’t of Hous. & Cmty. Affairs
v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2524 (2015)
(“If the specter of disparate-impact litigation causes private
424
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developers to no longer construct or renovate housing units for
low-income individuals, then the FHA would have undermined its own
purpose as well as the free-market system.
And as to governmental
entities, they must not be prevented from achieving legitimate
objectives, such as ensuring compliance with health and safety
codes.”); cf. Palmer v. Thompson, 403 U.S. 217, 227–28 (1971)
(Burger, C.J., concurring) (“To hold, as petitioners would have us
do,
that
every
public
facility
or
service,
once
opened,
constitutionally ‘locks in’ the public sponsor so that it may not
be dropped . . . would plainly discourage the expansion and
enlargement of needed services in the long run.”).
Federal courts
have appreciated this problem specifically in cases under the VRA:
The Court also notes that an acceptance of Plaintiffs’
argument that a Section 2 violation occurs merely
because some counties have more early polling sites
would have far-reaching implications. Consider the fact
that many states do not engage in any form of early
voting.
Following Plaintiffs’ theory to its next
logical step, it would seem that if a state with a
higher percentage of registered African–American voters
than Florida did not implement an early voting program
a Section 2 violation would occur because African–
American voters in that state would have less of an
opportunity to vote than voters in Florida. It would
also follow that a Section 2 violation could occur in
Florida if a state with a lower percentage of African–
American voters employed an early voting system, as
commented on above, that lasts three weeks instead of
the two week system currently used in Florida.
This
simply cannot be the standard for establishing a Section
2 violation.
Hood, 351 F. Supp. 2d at 1335–36; accord Brown, 895 F. Supp. 2d at
1254.
Plaintiffs have not provided a satisfactory response to
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this concern, either.
Absent some meaningful measurement of
equality, an arbitrary injunction in this case would send a cold
wind through legislatures in the multitude of States – like New
York, Michigan, and Washington – that presently have none of these
conveniences but may wish to consider them.
In the end, these important questions serve to undermine
Plaintiffs’ results-based theory of recovery under § 2.
B.
“Traditional” Fourteenth and Fifteenth Amendment Claims
The Fifteenth Amendment to the United States Constitution
provides, “The right of citizens of the United States to vote shall
not be denied or abridged by the United States or by any State on
account of race, color, or previous condition of servitude.”
Its
prohibition, for purposes of this case at least, patterns an
intent-based claim under § 2 of the VRA.
See, e.g., 52 U.S.C.
§
380,
10301(a);
Chisom
v.
Roemer,
501
U.S.
391–93
(1991).
Furthermore, under both the Fifteenth Amendment and the Equal
Protection Clause, plaintiffs must prove that the State acted with
a discriminatory purpose.
Reno, 520 U.S. at 481; Voinovich v.
Quilter, 507 U.S. 146, 158–59 (1993).
The court has already found that SL 2013-381 was not passed
with racially-discriminatory intent.
For this reason, these two
constitutional claims fail.
C.
Anderson-Burdick Claim
Plaintiffs also bring another Fourteenth Amendment claim 426
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 432 of 485
which is not based on race or age, but on the right to vote
generally - under the Anderson v. Celebrezze, 460 U.S. 780 (1983),
and Burdick v. Takushi, 504 U.S. 428 (1992), line of cases.
The right to vote is fundamental, but it does not entail an
absolute right to vote in any particular manner.
U.S. at 433.
Burdick, 504
“The Constitution provides that States may prescribe
‘[t]he Times, Places and Manner of holding Elections for Senators
and Representatives,’” id. (citing U.S. Const. Art. I, § 4, cl.
1), and it is well established that “there must be a substantial
regulation of elections if they are to be fair and honest and if
some
sort
of
order,
rather
than
chaos,
is
to
accompany
the
democratic processes,” id. (quoting Storer v. Brown, 415 U.S. 724,
730 (1974)).
Accordingly, even though “[e]lection laws will
invariably impose some burden upon individual voters,” not all
burdens are unconstitutional.
Id.
Plaintiffs contend SL 2013-381 imposes an unconstitutional
burden on the right to vote.
Regulations that impose a severe
burden on the right to vote must be “narrowly drawn to advance a
state interest of compelling importance.”
Norman v. Reed, 502 U.S. 279, 289 (1992)).
contrast,
are
subject
to
Id. at 434 (quoting
Non-severe burdens, by
Anderson-Burdick’s
more
flexible
balancing standard, under which this court must
weigh “the character and magnitude of the asserted
injury to the rights protected by the First and
Fourteenth Amendments that the plaintiff seeks to
427
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vindicate” against “the precise interests put forward by
the State as justifications for the burden imposed by
its rule,” taking into consideration “the extent to
which those interests make it necessary to burden the
plaintiff’s rights.”
Id. (quoting Anderson, 460 U.S. at 789). Within Anderson-Burdick’s
balancing standard, the “rigorousness of our inquiry into the
propriety of [a regulation] depends” upon the severity of the
burden imposed.
Id.
Accordingly, Anderson-Burdick balancing
operates on a sliding scale: the greater the burden imposed, the
more important a State’s justification must be.
Where
challengers
fail
to
show
that
Id.
a
law
imposes
a
“substantial burden on the right to vote, or even represent[s] a
significant increase over the usual burdens of voting,” Crawford,
553 U.S. at 198 (per Stevens, J.), a State need only show that
relevant and legitimate State interests are “sufficiently weighty
to justify the limitation,” id. at 191 (quoting Norman, 502 U.S.
at 288–89).
For example, in Burdick, the Court found Hawaii’s
legitimate interest in prohibiting write-in voting to outweigh the
“limited” and “slight” burden imposed by the restriction.
504
U.S. at 437, 439.
In addition, “when a state election law provision imposes
only ‘reasonable, nondiscriminatory restrictions’ upon the First
and Fourteenth Amendment rights of voters, ‘the State’s important
regulatory interests are generally sufficient to justify’ the
restrictions.”
Id. (quoting Anderson, 460 U.S. at 788).
The
428
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Supreme Court recently illustrated this principle in Crawford.
As discussed above, Crawford considered whether Indiana’s
voter-ID requirement violated the Equal Protection Clause of the
Fourteenth Amendment.
553 U.S. at 185.
Under the challenged law,
citizens “voting in person on election day, or casting a ballot in
person at the office of the circuit court clerk prior to election
day,”
were
required
identification.
Id.
to
present
a
government-issued
photo
The law applied “to in-person voting at both
primary and general elections,” but did not “apply to absentee
ballots submitted by mail” and contained “an exception for persons
living and voting in a state-licensed facility such as a nursing
home.”
“who
Id. at 185–86.
has
photo
In addition, the law permitted a voter
identification
but
is
unable
to
present
that
identification on election day [to] file a provisional ballot that
[would]
be
counted
if
[the
voter]
[brought]
her
photo
identification to the circuit court clerk’s office within 10 days.”
Id. at 186.
Thus, voters who availed themselves of this mechanism
were still required to “travel to the circuit court clerk’s office
within 10 days” of voting to provide proper identification.
at 199.
Id.
There was no photo identification requirement to register
to vote, and free photo ID was offered to those able to establish
their residency and identity.
that
the
law
“substantially
was
not
Id. at 186.
necessary
burden[ed]
the
to
right
avoid
to
Challengers claimed
election
vote”
by
fraud
and
placing
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an
arbitrary and unjustified burden upon qualified voters who did not
possess,
and
identification.
could
not
readily
obtain,
the
necessary
Id. at 187.
Justice Stevens, writing for himself and two other members of
the court, found that even though compliance with the law involved
the “inconvenience of making a trip to the [Bureau of Motor
Vehicles], gathering the required documents, and posing for a
photograph,” the challengers had failed to show that, as for any
class of voters, the law imposed “a substantial burden on the right
to vote, or even represent[ed] a significant increase over the
usual burdens of voting.”
for himself and two
Id. at 198.
Justice Scalia, writing
other members of the Court, would have decided
the case on broader grounds, 229 but nevertheless agreed that “[t]he
burden
of
acquiring,
possessing,
and
showing
a
free
photo
identification [was] simply not severe, because it d[id] not even
represent a significant increase over the usual burdens of voting.”
Id. at 209 (Scalia, J., concurring) (characterizing the burden as
229
Justice Scalia viewed Justice Steven’s opinion as assuming that the
voter identification law “‘may have imposed a special burden on’ some
voters.” Crawford, 553 U.S. at 204 (Scalia, J., concurring) (quoting
553 U.S. at 199 (Stevens, J., lead opinion)). Justice Scalia and two
other Justices would have considered only the burden the law imposed on
voters generally, as opposed to any particular class of voters. Id. at
208. To the extent that some debate remains as to whether the applicable
burden under Anderson-Burdick is to be evaluated for subclasses, this
court has assumed as much because, even under that standard, Plaintiffs
cannot prevail. See Husted, 768 F.3d at 543-45 (discussing the fractured
opinion from Crawford and whether Anderson-Burdick contemplates
subclasses).
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“minimal”).
Accordingly, six members of the Court found Indiana’s
legitimate interest in “orderly administration and accurate record
keeping,”
including
safeguarding
voter
confidence,
to
be
sufficient to justify the law’s burden upon the right to vote.
Id. at 192-97.
Even though the Court stated in Burdick that “[e]lection laws
will invariably impose some burden upon individual voters,” 504
U.S. at 433, neither the Supreme Court nor the Fourth Circuit has
considered
a
State’s
reduction
conveniences/“fail-safes.”
Supreme
Court
has
The
or
removal
traditional
encountered
in
its
of
burden
voting
that
the
Anderson-Burdick
jurisprudence has been affirmative (i.e., a burden that places an
additional obstacle between voters and voting).
See Crawford, 553
U.S. at 185 (requiring voters to have photo identification);
Burdick, 504 U.S. at 428 (requiring candidates to have participated
in Hawaii’s open primary in order to appear on the general election
ballot and prohibiting write-in voting); Anderson, 460 U.S. at 780
(requiring candidates to meet early filing deadline).
The Sixth
Circuit, however, has applied Anderson-Burdick in weighing the
burdens imposed by the removal of voting conveniences in two cases.
See Husted, 768 F.3d 524 (applying Anderson-Burdick to find that
plaintiffs were likely to succeed on their claim that Ohio’s
reduction of early-voting days violated their equal protection
rights);
Obama
for
America,
697
F.3d
at
427,
436
(applying
431
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Anderson-Burdick to find that plaintiffs were likely to succeed on
their claim that Ohio violated the equal protection clause of the
Fourteenth Amendment by permitting certain military voters — but
not other voters — to vote during the three days prior to Election
Day).
In the present case, the Fourth Circuit did not reach the
Anderson-Burdick claims.
Assuming, therefore, that the removal of a convenience voting
mechanism
is
the
type
of
burden
contemplated
by
the
equal
protection clause, the court finds that Plaintiffs have failed to
show that SL 2013-381 and SL 2015-103 impose a “substantial burden”
on any subclass of voters “or even represent a significant increase
over the usual burdens of voting.”
Crawford, 553 U.S. at 198.
Each provision is addressed in turn.
1.
Voter ID
Plaintiffs, other than the United States, 230 claim that North
Carolina’s voter-ID law imposes a substantial burden on the right
to vote.
Throughout this litigation, Plaintiffs have frequently
claimed that North Carolina’s voter-ID requirement is one of the
strictest in the country.
This may have been a reasonable claim
prior to SL 2015-103, but with the enactment of the reasonable
230
The United States makes no claim that North Carolina’s current ID law
violates the Fourteenth Amendment under the Anderson-Burdick line of
cases. (Doc. 419 at 77.)
432
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impediment exception, it is simply not true today. 231
SL 2013-381, as amended, is clearly less burdensome than
Indiana’s ID requirement upheld by the Supreme Court in Crawford,
Wisconsin’s ID requirement upheld by the Seventh Circuit in Frank,
or Georgia’s ID requirement upheld by the Eleventh Circuit in
Billups.
See Crawford, 553 U.S. at 198; Frank, 768 F.3d at 747;
Billups, 554 F.3d at 1354-55.
It is also less burdensome than the
Texas ID requirement that the Fifth Circuit struck down on § 2
231
Intervenor Plaintiffs (representing “young voters”) opted not to
participate in this court’s January 2016 trial on voter ID, resting
instead on the intent-related ID evidence presented at the July 2015
trial. Accordingly, they presented no evidence – and thus waived any
claim - that young voters will be unlawfully burdened by North Carolina’s
voter-ID requirement now that it has a reasonable impediment exception.
Nevertheless, this court’s independent analysis confirms that this will
not be the case.
Facially, out-of-State college students might seem
more at risk because they are unlikely to have a North Carolina driver’s
license. But those who are not residents for voting purposes, see N.C.
Gen. Stat. § 163-57(11), are not eligible to vote in the State anyway
and should vote in their State of residence by options available there.
Moreover, those who are North Carolina residents for voting purposes
retain several low-burden means of complying with the ID requirement.
If they are new to the State (e.g., a student enrolling in the fall
semester), they will be able to use their out-of-State driver’s license
for the November Presidential election because they will have registered
to vote within ninety days of the election.
N.C. Gen. Stat. § 163166.13(e)(8). The same will be true for students who delay registration
until the twenty-five day cut-off.
Id.
Once students’ out-of-State
licenses cease to be acceptable for voting purposes, those who do not
intend to drive and lack otherwise qualifying ID (passport, etc.) are
eligible for a no-fee voter ID and can obtain one for free at the DMV.
Those who intend to drive must obtain a North Carolina driver’s license
within sixty days of becoming a resident anyway. N.C. Gen. Stat. § 207(a). Most importantly, the reasonable impediment exception is available
for those who have any impediment to acquiring acceptable ID (e.g.,
students who live on campus and do not have transportation), including
young voters who are not college students. Further, no one has suggested
that college students lack the literacy required to vote under the
reasonable impediment exception.
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grounds in Veasey, 796 F.3d at 513 (petition for rehearing en banc
granted March 9, 2016).
And none of these States provided voters
with a reasonable impediment exception. 232
F. Supp. 2d at 46-48.
See South Carolina, 898
The only State to do so is South Carolina,
whose law was found by a three-judge panel not to impose a
“material burden” on minorities’ right to vote.
Carolina’s
reasonable
impediment
exception,
Id. at 41.
which
North
effectively
codifies the South Carolina law approved by the court, is therefore
not unique because it is strict; it is unique because it offers
socioeconomically-disadvantaged individuals without qualifying ID
a significant voter accommodation that few other States with ID
requirements provide.
In light of the reasonable impediment
exception, and for the reasons extensively stated above, this court
cannot say that North Carolina’s voter-ID requirement imposes a
“substantial
burden”
on
any
subclass
of
voters
“or
even
represent[s] a significant increase over the usual burdens of
voting.”
Crawford, 553 U.S. at 198.
Moreover,
despite
accommodating
those
expressing
genuine
difficulties in acquiring photo ID, North Carolina’s voter-ID
232
Indiana’s law contained an exception for “indigent” voters. Crawford,
553 at 216 (Souter, J., dissenting). However, this exception was much
narrower than North Carolina’s reasonable impediment exception. To vote
provisionally under Indiana’s indigency exception, a voter had to “(at
the circuit court clerk’s office) sign an affidavit affirming that she
[was] ‘indigent’ and ‘unable to obtain proof of identification without
the payment of a fee.’” Id. at 216 & n.19 (citing Ind. Code. Ann. § 311.7-5-2.5(c)(2)(A)).
434
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requirement still serves legitimate State interests articulated in
Crawford.
See supra Part II.A.2.j.i.
As noted above, SL 2013-
381 and SL 2015-103 had the effect of raising the security level
of both absentee mail voting and in-person voting.
II.A.2.j.i.
See supra Part
This court finds any alleged diminution in achieving
the State’s purported interest to be more than offset by the
reduction
of
exception.
burden
achieved
by
the
reasonable
impediment
Accordingly, North Carolina’s voter-ID requirement
serves legitimate State interests that are “sufficiently weighty
to justify the limitation.”
2.
Crawford, 553 U.S. at 191, 198.
Early Voting
Plaintiffs contend that voters have become habituated to
seventeen days of early voting and that decreasing early voting to
ten
days
imposes
a
“substantial”
burden
by
exacerbating
congestion, increasing wait times, and decreasing flexibility for
those with inflexible schedules and responsibilities.
(Doc. 346
at 141.)
The evidence in this case contradicts Plaintiffs’ assertions.
First, as discussed above, Plaintiffs failed to put forth credible
evidence that SL 2013-381 produced congestion or increased wait
times during the 2014 midterm election, or that these results will
occur in future elections.
hours requirement.
This is largely because of the same-
This does not mean that there may not be lines,
as early voting use has been proven to fluctuate with natural peak
435
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use times irrespective of the schedule.
Second,
there
is
no
evidence
that
North
Carolina’s
introduction of early voting or use of seventeen days of early
voting caused increased political participation either overall or
for any subclass.
In fact, the scholarly consensus is that early
voting tends to depress voter turnout.
Third, due to the interaction between SL 2013-381’s samehours requirement and the reduction in early-voting days, CBOEs
are forced to either open more early-voting sites or keep existing
sites open for longer hours, including expanding weekend hours.
The 2014 midterm illustrated this interaction, as high-convenience
night and weekend voting hours actually increased when SL 2013381 was implemented.
(See, e.g., Pl. Ex. 242 at 167—68.)
The
same-hours requirement can only be waived by a unanimous vote of
a bipartisan CBOE and bipartisan SBOE, which in total requires
agreement among five members of the majority party and three
members of the minority party; a single dissent will veto a waiver.
(See Doc. 340 at 204–05.)
Thus, GOTV efforts will have the same
availability of early-voting hours as before.
Fourth, the evidence showed that, even when seventeen days of
early voting could be offered, it was the last ten days that were
most heavily used and most offered.
Doc. 338 at 134–41.)
(See Def. Ex. 362 at 1–3;
Further, not all of the seven days of early
voting that were eliminated were actually used.
CBOEs were not
436
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required to offer weekend hours during the first seven days, (Doc.
340 at 197-98), and no county offered early voting on the first
Sunday in 2010, (see Doc 126-4 at 45-90).
Fifth, under the new ten-day early-voting schedule, African
American use of early in-person voting increased, turnout for both
African Americans and whites increased, and the disparity in
turnout between African American and white voters decreased. 233
(Def. Ex. 309 at 59–62, 68—69.)
Though young voters’ use of early
voting decreased in 2014, (Pl. Ex. 236 at 22–23.), young voter
turnout still increased, (Def. Ex. 309 at 78).
Young voters are
disproportionately more likely to put off voting until later in
the election period. 234
is
no
evidence
(Pl. Ex. 236 at 22.)
that
young
voters
are
In any case, there
disproportionately
disadvantaged in any way that would affect their ability to vote
within the provided ten days of early voting.
Finally,
Plaintiffs
failed
habituated to early voting.
to
show
that
any
voters
are
Instead, the evidence showed that
voters were able adapt to the new schedule.
In fact, those who
voted during the first seven days of early voting in 2012 were
233
Plaintiffs do not claim that Hispanics disproportionately used the
removed times of early voting. (Pl. Ex. 346 at 24-27.)
234
The evidence was that young voters were disproportionately likely to
vote during early voting after 1 p.m. on the final day of early voting,
which was removed by SL 2013-381. (Pl. Ex. 236 at 21-22.) Plaintiffs
do not claim, however, that SL 2013-381’s changes to the early-voting
schedule fall more heavily on young voters than African Americans.
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more likely to vote in 2014 than those who voted in the last ten
days.
Plaintiffs also argue that the new schedule eliminates a
Sunday of voting, which was important for GOTV efforts.
This is
true, but insofar as the schedule maintains one Sunday of voting
and increases night and weekend availability, the court cannot say
that this results in an impermissible burden on those efforts. 235
For all these reasons, and those laid out elsewhere in this
opinion, Plaintiffs have failed to show that the changes to the
early-voting
schedule
impose
a
“substantial
burden”
on
any
subclass of voters “or even represent a[n] . . . increase over the
usual burdens of voting,” Crawford, 553 U.S. at 198.
As discussed above, the changes to the early-voting schedule
(with the same-hours amendment) were intended to make early voting
more accessible and ensure that different parts of a county are
more equally served.
By removing seven days of early voting but
requiring that the same number of aggregate early-voting hours be
offered, SL 2013-381 furthers the State’s relevant and substantial
interests by requiring CBOEs to either open more early-voting sites
or keep existing sites open for more hours, including expanding
weekend hours.
If a CBOE does the former, different parts of a
235
It is highly questionable whether the State has any obligation to
provide for voting on Sunday, a day historically regarded as a non-work
day. Because the parties have not addressed that issue, the court need
not do so, either.
438
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county are more equally served.
If it does the latter, voters are
provided voting hours that are more convenient for typical work
schedules, especially those of lower economic means.
Both appear
to have occurred in the 2014 midterm, when both more locations and
more night and weekend hours were offered.
In other words, SL
2013-381 effectively reallocated the first seven days under the
former schedule, which were the least used days, into times that
are more accessible to voters.
Accordingly, this court finds the reduction in early-voting
days
to
be
tailored
to
achieving
the
State’s
relevant
and
substantial interest in producing a more efficient and fair earlyvoting process.
show
that
the
In addition, given that Plaintiffs have failed to
changes
to
the
early-voting
schedule
impose
a
“substantial burden” on any subclass of voters “or even represent
a[n] . . . increase over the usual burdens of voting,” this court
finds the State’s precise interest to be “sufficiently weighty to
justify the limitation.”
3.
Crawford, 553 U.S. at 191, 198.
SDR
Plaintiffs contend that the removal of SDR imposes a “severe”
burden
by
removing
disenfranchisement
young voters. 236
236
of
a
“fail-safe”
thousands
of
necessary
transient,
to
avoid
low-income,
the
and
(Doc. 346 at 141.)
Plaintiffs also produced several witnesses who testified that they
439
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 445 of 485
As discussed above, North Carolina provides a myriad of ways
for voters to comply with the registration requirement prior to
the cut-off (which is five days more generous than the NVRA’s
thirty-day requirement), most of which permit assistance.
supra
Part
II.A.3.c.
Those
who
avail
themselves
of
See
North
Carolina’s many registration opportunities at least twenty-five
days before Election Day have the opportunity to vote either during
the ten days of early voting (at any early-voting site), on
Election
Day
(at
their
correct
precinct
unless
they
are
an
unreported mover), or through the State’s mail-in absentee ballot
process.
The ease of registering and voting in North Carolina
believed they registered at the DMV leading up to the 2014 election only
to learn that they were not registered when they tried to vote. (Doc.
346 at 79—80.) If the DMV failed to successfully register these persons,
it would be highly troubling because the NVRA requires North Carolina’s
DMV to do so. In any case, SL 2013-381 did not cause the DMV’s errors.
Moreover, even if the DMV’s registration errors affect the burden imposed
by SDR’s removal, Plaintiffs presented no evidence that these errors
were anything but random.
In fact, one of Plaintiffs’ key arguments
about the sufficiency of the DMV as a registration option is that
minorities are less likely to seek DMV services. As such, any burden
must be evaluated as to voters generally. In Wake County during the
2014 election, approximately 250 voters claimed they had attempted to
register at the DMV, even though there was no record of their
registration at the voting location. (Pl. Ex. 817 at 122-24.) But even
if each voter in fact attempted to register at the DMV, and assuming
that each voter’s registration problem was attributable to DMV error,
this would only account for .87% of the roughly 28,800 voter
registrations transmitted from the DMV to Wake County each year. (Pl.
Ex. 800 at 152-53 (noting 120 per day for 240 days).) Accordingly, this
court is unable to find that the DMV’s errors impose a substantial burden
on voters generally or any definable subclass of voters. In any case,
the burden is outweighed by the State’s asserted interest in the removal
of SDR.
440
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 446 of 485
without SDR is bolstered by the fact that, even after SDR was
eliminated, African American and young voter 237 registration and
turnout rates increased.
(See Pl. Ex. 684; Pl. Ex. 229 at 7; Def.
Ex. 309 at 66, 78; Def. Ex. 344.)
Hispanic 238 turnout rates also
increased at a higher rate than white voters from 2010 to 2014.
(Def. Ex. 309 at 61-66 (tbls. 4-8).)
Further, the fact that the
vast
voters
majority
of
African
American
have
successfully
registered without SDR (even when it was available) demonstrates
that the State’s registration opportunities do not impose “severe”
or even “substantial” burdens on any subclass of voters “or even
represent . . . a[n] increase over the usual burdens of voting.”
Crawford, 553 U.S. at 198; Marston, 410 U.S. at 681 (endorsing
State’s voter registration cut-off where justified as “necessary
to
promote
the
State’s
important
interest
in
accurate
voter
lists”).
By contrast, SDR’s removal serves relevant and sufficiently
substantial State interests by ameliorating several significant
237
Plaintiffs showed that young voters disproportionately used SDR when
it was in place. (Pl. Ex. 236 at 7, 15-16.) Although young voters are
disproportionately African American and Hispanic, Plaintiffs have
presented no evidence that young voters experience socioeconomic
disparities that make SDR’s removal fall more heavily on them than
African Americans or Hispanics generally.
238
Plaintiffs presented evidence that Hispanics were more likely to use
SDR when it was in place.
(Pl. Ex. 245 at 23.)
As with the other
provisions in this case, Plaintiffs’ focus was on African Americans.
Plaintiffs do not claim that SDR’s removal imposes a heavier burden on
Hispanics than African Americans.
441
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 447 of 485
problems.
First, and most importantly, SDR’s close proximity to
Election Day increased the risk (over traditional registrants)
that individuals would have their vote counted despite later
failing mail verification.
See supra Part II.A.2.j.iii.
In 2012,
2,361 votes were counted despite the registrant later failing mail
verification, not because of insufficient staffing, but because
SDR extended the registration date too close to Election Day to
give the verification process an opportunity to work.
Moreover,
by making registration and voting contemporaneous, SDR negated the
State’s ability to cancel registrations and rendered N.C. Gen.
Stat. § 163-82.7(f) a nullity.
With SDR removed, the number of
late registrants who vote but thereafter fail mail verification
will be reduced.
Second, SDR created administrative burdens on
CBOEs that were more than merely imaginable.
II.A.2.j.iii.
in 2008.
See supra Part
For example, there were 252,684 SDR-registrations
(Pl. Ex. 40 at 35 (Ex. 14).)
The SBOE executive
director’s post-2008 analysis indicates that, despite “hir[ing]
additional staff” and “working as efficiently as they could” for
“long hours and workweeks,” CBOEs found it “not possible” to meet
the statutory forty-eight hour deadline “due to the volume” of
SDR-registrations.
requiring
them
(Pl. Ex. 56 at 5.)
to
research
and
SDR also burdened CBOEs by
process
“intersecting
registrations” “on a case by case basis to ensure that there was
no possible fraud being committed.” (Id. at 7); see also supra
442
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 448 of 485
Part II.A.2.j.iii.
For these reasons, this case is significantly different from
Husted.
There, the State was unable to identify any real burden
in having five days of ordinary registration overlap with the first
five days of the thirty-five day early-voting period (“Golden
Week”), or any benefit to the State from eliminating those five
days overlap because the State still had thirty days to verify SDR
registrants.
difficulties
Husted,
of
768
verifying
F.3d
voter
at
547
(finding
registration
that
before
“the
counting
ballots did not clearly pertain to problems with Golden Week
specifically”).
Given that Plaintiffs have failed to show that the removal of
SDR imposes a
“substantial burden” on any subclass of voters “or
even represent[s] a[n] . . . increase over the usual burdens of
voting,” this court finds the State’s precise interests furthered
by the removal of SDR to be “sufficiently weighty to justify the
limitation.”
4.
Crawford, 553 U.S. at 191, 198.
OOP
Plaintiffs contend that the removal of OOP imposes a severe
burden by disenfranchising those who attempt to vote outside of
their precinct on Election Day.
(Doc. 346 at 142.)
Because OOP
provisional ballots have never constituted more than a fraction of
a percentage point of votes cast, and voting in the correct
precinct merely requires one to become informed of his or her
443
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 449 of 485
correct precinct and travel to it within the county, the burden
(if any) to the general voting population from the removal of OOP
is very slight. Insofar as North Carolina has employed a precinctbased
system
for
more
than
a
century,
in
no
case
is
it
“substantial,” nor does it “represent a[n] . . . increase over the
usual
burdens
Nevertheless,
of
voting.”
Plaintiffs
Crawford,
contend
that
553
it
U.S.
imposes
at
198.
a
more
substantial burden on certain subgroups who disproportionately
lack access to reliable transportation.
Plaintiffs have presented evidence that African Americans are
disproportionately
more
likely
to
be
socioeconomically
disadvantaged and to have less stable access to transportation. 239
In addition, Plaintiffs demonstrated that African Americans are
disproportionately more likely to attempt to vote out of their
precinct than whites.
(Pl. Ex. 42 (Ex. 49).)
Nevertheless, the
extent of the burden claimed in getting to an assigned precinct
must be evaluated in light of the fact that OOP ballots have never
constituted more than a fraction of a single percentage point of
239
Again, the court assumes, without deciding, that burdens on subclasses
are cognizable. Plaintiffs also showed that Hispanics and young voters
disproportionately used OOP when it was in place. See supra note 117
(Hispanic and young voter SDR data). But, as noted above, Hispanics are
more likely to have access to a vehicle than African Americans, (Pl. Ex.
45 at 13-14), and Plaintiffs do not claim that OOP’s removal imposes a
heavier burden on Hispanics than African Americans. As for young voters,
although they are disproportionately African American and Hispanic,
Plaintiffs have presented no evidence that young voters experience
socioeconomic disparities that make OOP’s removal fall more heavily on
them than African Americans and Hispanics generally.
444
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 450 of 485
ballots cast by African Americans.
U).)
(Id.; Pl. Ex. 242 at 161 (App’x
In addition, of the small sliver of African American voters
who voted in the wrong precinct, the evidence showed that the
majority (60.3%) voted at a precinct within five miles of their
assigned precinct.
Further,
a
(Def. Ex. 212A at 18 & tbl. 23.)
benefit
of
a
precinct-based
system
is,
as
recognized in James, that it generally places voting locations
closer to voters.
The fact that Plaintiffs’ evidence fell far
short of establishing that OOP voters’ correct precinct was not in
fact the closest one to their address of registration supports the
conclusion
that
the
outlined in James.
precinct
system
is
serving
the
benefits
In fact, only two witnesses (a married couple)
testified that their correct precinct was not the closest precinct
to their residence.
But the disabilities of these witnesses were
such that even voting at the closest, albeit incorrect, precinct
was nearly an unmanageable burden.
More than anything, these
witnesses demonstrated the need for mail voting, which North
Carolina provides. 240
As to Plaintiffs’ other fact witnesses, even though OOP voters
must
be
registered
and
every
registered
voter
is
mailed
a
registration card that provides his or her correct precinct, it
was apparent that many such voters had never attempted to check
240
The evidence demonstrated that North Carolina has one of the longest
absentee mail ballot periods in the Nation. (Def. Ex. 270 at 35.)
445
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 451 of 485
their correct precinct.
(See, e.g., Doc. 330 at 176-77.)
Of
course, voters who determine their correct precinct will never
have to travel from the wrong precinct to the correct precinct.
Nevertheless, the evidence does not support Plaintiffs’ claims
even for those who first appeared at an incorrect precinct.
As
discussed above, Plaintiffs presented the deposition testimony of
a poll observer who, in attempting to measure the impact of SL
2013-381, collected the names of fifty-nine individuals who left
a precinct because they were assigned to vote in another precinct.
(Pl. Ex. 796.)
However, Defendants’ follow-up revealed that, of
the fifty-two who could be identified as registered voters, fortynine
ultimately
voted
on
Election
Day.
(Def.
Ex.
343.)
Accordingly, 94.2% were able to travel from the wrong precinct to
the right one on Election Day.
Only three of the fifty-two never
successfully voted; two were white, and the other was African
American who does not appear to have been eligible to vote anyway.
(Id. at 132-34, 140—43.)
This evidence undermines Plaintiffs’
contention that requiring voters to vote in the correct precinct
imposes a substantial burden.
Accordingly, while the removal of OOP requires voters to
travel to their correct precinct, the incredibly small number of
voters
(including
African
Americans)
affected,
the
inherent
proximity of their correct precinct, and, though not dispositive,
African American’s continued rise in turnout since the removal of
446
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 452 of 485
OOP, suggest that the burden imposed on them as a subclass is not
“substantial” and does not “represent a[n] . . . increase over the
usual burdens of voting.”
As
discussed
above,
Crawford, 553 U.S. at 191.
OOP’s
removal
served
relevant
and
substantial State interests that have been well-established and
thoroughly laid out by both the North Carolina Supreme Court and
the Sixth Circuit.
See supra Part II.A.2.j.iv.
The precinct
system caps the number of voters attempting to vote in one place
on Election Day, allows each precinct to prepare a ballot that all
voters who vote at that precinct will be eligible to complete in
full,
makes
ballots
less
confusing
by
only
including
those
candidates for whom a citizen may vote, makes it easier to monitor
votes and prevent fraud, and generally results in polling places
being closer to voter residences.
James, 359 N.C. at 270-71, 607
S.E.2d at 644—45; Sandusky Cty. Democratic Party, 387 F.3d at 569.
Although OOP voting may have increased the proximity of the
nearest Election Day voting location for some voters, it did so
only by undermining many of the other advantages of a precinctbased system.
First, it removed the cap on the number of voters
attempting to vote in one place on Election Day, and the evidence
shows that political organizations transported voters to precincts
without making any determination of their correct precinct.
Ex. 9 at 5; Pl. Ex. 811 at 46.)
significant administrative burdens.
(Pl.
Second, OOP voting produced
See supra Part II.A.2.j.iv.
447
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Finally, OOP partially disenfranchised voters.
II.A.2.j.iv.
no
See supra Part
Although OOP voters may have thought that there was
difference
between
going
to
their
correct
precinct
and
a
different precinct with OOP in place, and that all of their
provisional votes would count, this was not the case.
Thus, as
laid out in James, OOP made voting more confusing because OOP
voters were not actually eligible to vote for all of the races on
the provisional ballot they were provided.
There were also races
omitted from the provisional ballot that OOP voters would have
been eligible to vote for if they had presented at their correct
precinct.
OOP’s removal significantly ameliorated each of these
problems and restored the advantages of a precinct system outlined
in James.
Given that Plaintiffs have failed to show that the removal of
OOP imposes a
“substantial burden” on any subclass of voters “or
even represent[s] a[n] . . . increase over the usual burdens of
voting,” this court finds the State’s precise interests furthered
by the removal of OOP to be “sufficiently weighty to justify the
limitation.”
Crawford, 553 U.S. at 191, 198.
5.
Plaintiffs
Pre-registration
contend
that
the
removal
of
pre-registration
imposes a “severe” burden on young voters by increasing confusion
and forcing them to register in a more burdensome manner.
(Doc.
346 at 142.) Plaintiffs also claim that, without pre-registration,
448
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 454 of 485
youth registration and turnout will decrease, particularly among
African American and Hispanic citizens.
(Id.)
In support of their claim, Plaintiffs have demonstrated that
pre-registration increases youth turnout, albeit in a race-neutral
manner. 241
See supra Part II.A.3.e.
Plaintiffs’ expert, Dr.
Hillygus, predicts that 8,000 to 50,000 fewer young voters will
vote in 2016 than would have if pre-registration remained in place.
First, because pre-registration’s removal did not eliminate
a registration opportunity for anyone who is actually eligible to
vote,
this
court
doubts
whether
the
elimination
of
pre-
registration imposes a cognizable burden on the right to vote.
Plaintiffs have provided no authority for the proposition that the
Constitution’s prohibition of certain unjustified burdens on the
right to vote extends to burdens imposed on those who are not
eligible to vote.
But
assuming
cognizable
burdens
extend
beyond
eligible
voters, this court cannot say that registering and voting is
materially
more
registration.
difficult
for
young
voters
without
pre-
Even assuming that pre-registration at a mandatory
high school voter registration drive is the most convenient way
241
Plaintiffs’ contention that minority registration and turnout rates
will fall for young minorities without pre-registration is not supported
by the evidence.
African American registration rates reached parity
with white registration rates in 2008, before pre-registration was
adopted, and continued to climb in 2014, after pre-registration was
eliminated.
(Pl. Ex. 684.)
African American turnout rates also
increased in 2014. (Def. Ex. 309 at 59–62, 68—69.)
449
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for young North Carolinians to register, as set forth above, North
Carolina offers a multitude of highly convenient ways to register.
See supra Part II.A.3.c.
Young North Carolinians who are unable
to pre-register at sixteen due the removal of pre-registration but
who wish to do so if they will be eighteen before the next election
need look no further than their own high school to find all the
materials that are required.
See N.C. Gen. Stat § 163-82.23
(“Every public high school shall make available to its students
and others who are eligible to register to vote [voter registration
application forms], and shall keep a sufficient supply of the forms
so
that
they
are
always
available.”).
Even
without
pre-
registration, North Carolinians who are seventeen-years-old but
will be eighteen by the time of the general election can begin to
take advantage of these ample registration opportunities as early
as sixty days before the primary preceding the general election.
N.C. Gen. Stat. § 163-59.
In addition, young individuals could
not disregard these ample alternative means of registration simply
because they pre-registered.
was
in
place,
In fact, even when pre-registration
pre-registrants
who
moved
residences
between
counties prior to voting, such as college students, needed to use
these alternative methods of registration to re-register.
Simply
put, the removal of pre-registration does not hinder young North
Carolinians from using any of the remaining methods of registration
and voting that this court has found to be sufficient for other
450
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 456 of 485
groups; it merely requires that they wait until they will be
eligible to vote in the next election.
For these reasons, to the extent that the removal of preregistration imposes a burden upon young voters that is cognizable
under Anderson-Burdick, that burden is extremely slight.
In no
event is the burden that young North Carolinians face to register
any greater than the “usual burdens of voting.”
U.S. at 198.
Crawford, 553
It is merely the same burden that every eligible
voter faces.
As noted above, the State’s interest for pre-registration reducing confusion - was far weaker than for the changes to early
voting and the removal of SDR and OOP. In fact, for the registrant,
the removal of pre-registration makes the issue of when he or she
is
eligible
to
register
marginally
more
complicated.
Nevertheless, there was evidence of voter confusion with preregistration, namely that some pre-registrants reasonably believed
that they would receive a voter registration card after preregistering.
Senator Rucho also claimed during legislative debate
of SL 2013-381 that he and his son experienced confusion with preregistration.
See supra Part II.A.2.J.v.
Moreover, the State has a legitimate interest in establishing
a minimum age for the registration of new voters, so long as the
Twenty-Sixth Amendment is not violated.
If the State does not
have
registration
a
legitimate
interest
in
tying
to
when
451
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 457 of 485
individuals become eligible to vote, then it is difficult to
imagine any line that could properly be drawn.
If sixteen-year-
olds cannot legitimately be prohibited from registering, then why
can
fifteen-year-olds
or
fourteen-year-olds?
Surely
the
Constitution permits the State to draw some lines, especially where
the burden imposed is not material and the age of registration the
State chooses is tied to when individuals actually will be eligible
to vote in the next general election.
U.S.
at
681
(“The
Constitution
is
See, e.g., Marston, 410
not
so
rigid
that
that
determination [fifty- versus thirty-day registration deadline] and
others like it may not stand.”).
Therefore,
since
the
burden
on
the
prospective
pre-
registrants is extremely slight or, more likely, non-existent
(since they are not eligible voters), the State’s interests are
sufficient to overcome this “burden.”
6.
CBOE Discretion
Plaintiffs contend that the removal of CBOE discretion to
keep polling locations open for an extra hour on Election Day
burdens “some voters,” but they do not characterize the burden’s
nature.
(Doc. 346 at 142.)
Plaintiffs do not specify who these
voters are likely to be, nor do they allege that they share any
characteristic that would make it more difficult for them to vote
during normal Election Day hours (or for that matter during the
ten days of early voting or by an absentee mail-in ballot).
452
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In
fact, what Plaintiffs characterize as a loss of voting time is
actually a reallocation of decision making to the SBOE. Even after
SL 2013-381, if there is an interruption in voting for more than
fifteen minutes, the SBOE can extend hours for the length of the
interruption.
N.C. Gen. Stat. § 163-166.01.
In addition, anyone
that is in line at the time the polls close is allowed to vote
regardless of how long it takes.
In other words, both before SL
2013-381 and after, there is a mechanism to accommodate voters.
Session Law 2013-381 simply places this mechanism with the SBOE.
Plaintiffs did not present any evidence that anyone was burdened
by this transfer of discretion.
Following a full trial, it is
insufficient for Plaintiffs to speculate as to the effect of an
election change.
The State has a legitimate interest in promoting uniformity
in the hours of voting offered. North Carolina’s decision to place
decision making-authority with the SBOE, rather than 100 CBOEs, is
tailored
to
achieving
this
interest.
Even
if
SL
2013-381’s
reallocation of decision-making authority imposed the slightest of
burdens upon voters, which it does not, the State’s interest is
sufficient to overcome it.
7.
Poll Observers and Challengers
Plaintiffs also challenge SL 2013-381’s expansion of poll
observers and challengers as an unjustified burden on the right to
vote.
(Doc. 384 in case 1:13cv658 at 5, 34.)
453
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Plaintiffs do not challenge the use of poll observers or
challengers generally; they instead argue that the law’s expansion
of them burdens voters.
Any use of a poll observer to intimidate
a voter is unlawful and will not be tolerated.
But Plaintiffs’
concerns as to future fears remain speculative, even after trial.
They have presented no evidence that any observer or challenger
would or did abuse his statutory power or that observers or
challengers imposed any burden on voters in 2014.
State
justification
provision.
is
needed
to
sustain
the
As such, no
poll
observer
See McLaughlin v. North Carolina Bd. of Elections, 65
F.3d 1215, 1221 n.6 (4th Cir 1995) (“If a regulation imposes no
burdens, it would not fail the balancing test even though it also
served no discernible state interest.”).
8.
The
Cumulative Effect of Provisions
court
now
challenged provisions.
considers
the
cumulative
effect
of
the
See, e.g., Pisano v. Strach, 743 F.3d 927,
933 (4th Cir. 2014) (“[W]e evaluate the combined effect of the
state’s ballot-access regulations.”); Wood v. Meadows, 207 F.3d
708, 713 (4th Cir. 2000).
As discussed above in this section and
for the same reasons discussed more fully in the VRA analysis,
Plaintiffs failed to show that the changes brought about by SL
2013-381
impose
cognizable
burdens
that
outweigh
the
State’s
asserted interests.
The cumulative effect of the challenged provisions is no more
454
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 460 of 485
than slight to modest.
Even though SL 2013-381 added a voter-ID
requirement (with reasonable impediment exception) and removed or
amended more than one measure, the measures had provided exceptions
to traditional and long-standing voting rules in the State.
Carolinians
who
wish
to
register
and
vote
still
North
have
convenient ways that provide ample opportunity to do so.
many
North
Carolinians can submit an absentee mail-in ballot between fortyfive
and
sixty
days
before
Election
Day
(depending
on
the
election), vote during the ten days of early voting during expanded
hours, or vote on Election Day.
Although North Carolinians must
now register by twenty-five days before the election, registration
is easy, open all year, and can be accomplished by methods that
remain plentiful.
That this is so is reflected by the increase in
registration and turnout rates seen in the 2014 primary and general
elections.
And, while Plaintiffs characterize North Carolina as
unique in altering its election law provisions in the same bill, 242
and while the court’s appraisal has been local, it is notable that
the State still compares very favorably to most States – even
formerly § 5-covered jurisdictions like New York, Alabama, and
Mississippi
-
that
today
have
significantly
less
progressive
voting rules.
242
This is clearly not the case, as Florida’s reduction in early voting
was part of eighty sets of changes, four of which were initially
challenged.
See Florida, 885 F. Supp. 2d at 302-07 (addressing
challenges to early-voting reduction of days and inter-county movers).
455
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 461 of 485
In
sum,
Plaintiffs
have
failed
to
show
that
any
North
Carolinian who wishes to vote faces anything other than the “usual
burdens of voting.”
Crawford, 553 U.S. at 198.
The State, by
contrast, has shown that SL 2013-381 furthers several legitimate
State
interests.
Accordingly,
this
court
finds
the
State’s
interests to outweigh the, at most, slight to modest burden that
the provisions cumulatively impose upon the right to vote.
D.
Twenty-Sixth Amendment Claim
Finally, Intervenor Plaintiffs, “young voters,” argue that
the voter-ID requirement, the transfer of discretion to extend
early-voting hours, the change in the early-voting schedule, the
elimination of SDR, OOP, pre-registration, and mandatory high
school registration drives all violate the Twenty-Sixth Amendment
to the United States Constitution by “intentionally burden[ing]
the ability of young people . . . to register and to vote.”
285 at 55.)
(Doc.
Intervenors, all eighteen and older, do not bring
their claims on behalf of a class of voters; they bring them on
their own behalf, only. Intervenors’ claims are novel and appeared
murky throughout this litigation.
Trial did not make them less
so.
The Twenty-Sixth Amendment provides: “The right of citizens
of the United States, who are 18 years of age or older, to vote,
shall not be denied or abridged by the United States or any state
on account of age.”
The amendment is modeled after the Fifteenth
456
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 462 of 485
and Nineteenth Amendments.
2, 1st Sess. (1971).
Pub. Law. 89-110, S. Rep. No. 92-26 at
In this respect, the court considers the
amendment to proscribe both the denial and abridgement of the right
to vote.
Few
cases
have
considered
the
Twenty-Sixth
Amendment.
Plaintiffs rely on Walgren v. Board of Selectmen of Town of
Amherst, 519 F.2d 1364 (1st Cir. 1975), where a class of eighteento twenty-year-old college students sought to invalidate a 1973
town
election
held
during
a
winter
recess,
when
some
10,000
students were away, on grounds of equal protection and the TwentySixth Amendment.
Id. at 1364-65.
After a trial on the merits,
the district court dismissed the case, finding plaintiffs’ claims
of disproportionate burden speculative.
Id. at 1367.
In a prior
opinion, the circuit court had “opine[d] that ‘it seems only
sensible
that
disproportionately
if
a
affects
condition,
not
the
rights
voting
insignificant,
of
citizens
specifically protected by [the Twenty-Sixth Amendment], the burden
must shift to the governmental unit to show how the statutory
scheme effectuates, in the least drastic way, some compelling
governmental objective.’”
Id. (quoting Walgreen v. Howes, 482
F.2d 95, 102 (1st Cir. 1973) (emphasis added)). The district court
purported to apply this test in considering the Twenty-Sixth
Amendment claims.
Id.
Nevertheless, rather than establish that
this is the correct test under the Twenty-Sixth Amendment, the
457
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circuit court avoided the issue by finding that the State was
entitled to prevail even under a “rigorous” standard of review.
Id.
at
1367-68
(reiterating
that
it
remained
“without
the
assistance of any precedents . . . in evaluating the impact of the
Twenty-Sixth
issue”).
Amendment”
and
that
it
“need
not
now
face
this
As such, the court affirmed on the ground that the
shortened time frame within which the town selectmen had to make
an admittedly novel decision about setting the election date on
the heels of the passage of the Twenty-Sixth Amendment justified
the town’s action.
Id. at 1368.
Defendants cite Gaunt v. Brown, 341 F. Supp. 1187 (S.D. Ohio
1972). In Gaunt, plaintiffs challenged a State law that prohibited
seventeen-year-olds who would have been eighteen by the time of
the general election from participating in the primary for that
general election since they would not be eighteen by the time of
the primary.
Id. at 1188.
A three-judge district court dismissed
the claims, finding plaintiffs’ argument amounted to little more
than that “the State, in reforming its laws to bring it into line
with the Twenty-sixth Amendment, has not gone far enough.”
1192.
Id. at
The court stated that under the Elections Clause and Tenth
Amendment, the State had a “clear” right to limit plaintiffs’ right
to vote in primaries, subject to constitutional limitations.
at 1189.
Id.
The court rejected calls for a “‘compelling interest’
standard . . . because no State could demonstrate a ‘compelling
458
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interest’ in drawing the line with respect to age at one point
rather than another.”
Id.
The court observed that the Twenty-
Sixth Amendment “does not grant the right to vote to 18-year-olds
and was not intended to.
18.”
Id. at 1191.
It simply bans age qualifications above
Accordingly, the court found “nothing to
indicate an intent [by Congress] to interfere with state action
fixing at 18 the minimum age limit for participating in such
[primary] nominating process.”
Sixth
Amendment
was
“in
no
Id.
way
So, finding that the Twentyintended
to
‘offend
our
federalism,’” and unable to locate any case where a State was
“called on to justify its drawing the line for qualifications at
18 years of age,” the court rejected plaintiffs’ claim.
1192.
Id. at
The Supreme Court affirmed by judgment without any opinion.
409 U.S. 809 (1972).
Accordingly this court faces a dearth of guidance on what
test applies to Twenty-Sixth Amendment claims.
Nashville Student
Org. Comm. v. Hargett, No. 3:15cv00210, 2015 WL 9307284, at *6
(M.D. Tenn. Dec. 21, 2015) (“[T]here is no controlling caselaw
. . . regarding the proper interpretation of the Twenty-Sixth
Amendment or the standard to be used in deciding claims for TwentySixth Amendment violations based on an alleged abridgment or denial
of the right to vote.”)
It is far from clear that the Twenty-
Sixth Amendment was intended to encompass the removal of the voting
conveniences challenged in this case.
Nevertheless, even assuming
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that Plaintiffs’ theory of the Twenty-Sixth Amendment is correct
— and it is effectively the Fifteenth Amendment but with young
voters as the relevant class — Plaintiffs have failed to establish
that SL 2013-381 was intended to discriminate against young voters.
This alone is fatal to Plaintiffs’ claim because, even under the
Fifteenth Amendment, plaintiffs must prove that the State acted
with a discriminatory purpose.
Reno, 520 U.S. at 481; Voinovich,
507 U.S. at 158–59.
Plaintiffs
presented
evidence
that
young
North
Carolina
voters were more likely than older voters to use SDR and OOP when
they were in place.
(Pl. Ex. 236 at 7-8, 35); supra note 117.
Young voters were also more likely to vote after 1 p.m. on the
final day of early voting, and HB 589 removed CBOE discretion to
extend early voting from 1 p.m. to 5 p.m. on the final day of early
voting.
(Pl. Ex. 236 at 7.)
There was also evidence that young
voters are less likely to have qualifying photo ID.
(Id. at 8.)
Finally, by definition, young individuals were the only group that
could
pre-register
or
participate
registration drives were mandatory.
when
high
school
voter
There is no evidence that
young voters disproportionately used the discretionary hour of
voting SL 2013-381 transferred from CBOEs to the SBOE.
There is also evidence that, along with every other possible
demographic, Representative Warren requested a DMV cross-matching
of DMV issued IDs with registered voters broken down by age.
(Pl.
460
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 466 of 485
Ex. 69 at 3 (“[W]e would need to have [the cross-matching] broken
down into different categories within each county by all possible
demographics
that
your
department
typically
affiliation, ethnicity, age, gender, etc.).”).)
captures
(party
He also requested
the same information for one-stop voters and provisional voters.
(Id.)
Similarly, Senator Stein and other representatives claimed
that HB 589 would disproportionately burden young voters.
e.g., Pl. Ex. 550 at 30, 33.)
(See,
But see Butts, 779 F.2d at 147;
Veasey, 796 F.3d at 487 (collecting cases) (“Conjecture by the
opponents of [a law] as to the motivations of those legislators
supporting the law is not reliable evidence.”).
Next, Plaintiffs point to the fact that college IDs were not
permitted under HB 589’s voter-ID provisions. But, as noted above,
the legislature offered at least plausible reasons for excluding
student IDs: (1) there was inconsistency in the way colleges issued
IDs, (Pl. Ex. 202 at 68-69), and (2) permitting student IDs would
be redundant because some schools require a photo ID to obtain a
student ID, (Pl. Ex. 138 at 13). 243
In addition, a district court
243
An earlier version of HB 589 permitted ID cards “issued by the
University of North Carolina or its constituent institutions” and ID
cards “issued by a North Carolina community college.” H.B. 589, 2013
Gen. Assemb., Reg. Sess. § 4 (N.C. 2013) (Edition 5). There are seventeen
universities within the University of North Carolina system and fiftyeight public community colleges in the State.
University of North
Carolina, http://www.northcarolina.edu/ (last visited April 15, 2016);
NC Community Colleges, http://www.nccommunitycolleges.edu/ (last visited
April 15, 2016); Fed. R. Evid. 201.
This would have required poll
workers to verify seventy-five additional forms of photo ID of varying
461
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 467 of 485
recently
dismissed
Tennessee’s
voter
a
ID
Twenty-Sixth
law,
which
Amendment
also
omitted
claim
against
student
IDs.
Nashville Student Org. Comm., 2015 WL 9307284, at *6-7.
Even having considered the above with all the other evidence
of intent presented by Plaintiffs, this court finds that the
legislature enacted HB 589 in spite of, not because of, these
disparities. 244
Importantly, the legislature offered a non-tenuous
reason for the removal of pre-registration and substantial reasons
for the voter-ID requirement, the changes to the early-voting
schedule, and the removal of SDR and OOP.
Further, as noted in
the Anderson-Burdick analysis, the removal of CBOE discretion to
extend voting for an extra hour on Election Day promotes uniformity
formats that were largely redundant of permitted IDs. (Pl. Ex. 549 at
91-92 (“What does Mayland Community College ID look like? What does a
Western Carolina ID look like?
What does East Carolina’s ID look
like?”).) Failure to do this is at best weak evidence of discriminatory
intent.
244
The remaining evidence on intent presented by Plaintiffs consists of
the statement of an individual legislator made during debate of the prior
version of the voter-ID provision, which Plaintiffs themselves
characterize as a “joke,” (Doc. 285 at 59 (Representative Collins));
statements of a non-legislator activist seeking to claim credit, whom
the court did not find credible, (Doc. 346 at 115-16 (Jay DeLancy)), for
ideas that were not necessarily his, (see Pl. Ex. 789 at 30-31 (saying
that the provisions of HB 589 were not novel ideas, but instead had been
“swirling around . . . since 2012”) (former Rep. Carolyn Justice));
actions of the SBOE after the law’s enactment, (Doc. 346 at 116 (Strach
direction to DMV)); and early-voting placement decisions by certain
CBOEs, (id. at 116-17).
This court finds these non-contemporaneous
actions and statements to be of limited probative value in determining
the motivation behind HB 589. See, e.g., Barber, 560 U.S. at 485-86;
Veasey, 796 F.3d at 502-503; Jones v. Lubbock, 727 F.2d 364, 371 n.3
(5th Cir. 1984) (refusing to judge intent from statements made by a
single member of the legislative body).
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by placing extension decisions with one decision maker (the SBOE)
rather than 100 CBOEs.
See supra Part II.C.6.
In addition, in
implementing the voter-ID requirement, the legislature followed
recommendations of the Carter-Baker Report and provided for more
than two years of “soft roll out” to give notice and made voter
IDs available for free.
Thus the legislature attempted to soften
any burden imposed by the ID requirement.
For all the reasons
noted earlier, the legislative process was not indicative of
discriminatory intent. CBOEs may no longer be able to unilaterally
extend hours until 5 p.m. on the last day of early voting, but all
persons in line by closing time remain entitled to vote, and the
new early-voting schedule provides additional night and weekend
hours to compensate for this loss.
In short, what remains under the law provides all voters,
including young voters, with an equal and ample opportunity to
participate in the political process.
This court realizes that
the
limited
relevant
question
for
intent
is
to
the
time
of
enactment, but the fact that young voter turnout increased under
the new law is some further indication that undermines Plaintiffs’
intent claim.
As such, and having considered the entire record as a whole,
the court finds that Plaintiffs have failed to establish that the
legislature
intended
to
discriminate
against
young
voters
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Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 469 of 485
by
enacting SL 2013-381. 245
This finding is alone sufficient to
dispose
Twenty-Sixth
of
Plaintiffs’
Amendment
claim,
but
Plaintiffs have also failed to show that the law denies or abridges
the right of any eligible eighteen-year-old to vote.
Plaintiffs have failed to show that SL 2013-381 imposes a
heavier burden on young voters. 246
Given North Carolina’s ample
alternative registration and voting mechanisms, this court cannot
say that young voters’ right to vote – or others’ right to help
young voters register and vote 247 – has been denied or abridged.
North Carolina, even after SL 2013-381, offers a voting opportunity
that the Gaunt court found not to be required by the Twenty-Sixth
Amendment: the right of a seventeen-year-old who will be eighteen
by the time of the general election to register and vote in the
primary election even though they will be only seventeen at the
time of the primary.
N.C. Gen. Stat. § 163-59.
Once an individual
245
This finding also disposes of Intervenor Plaintiffs’ Fourteenth
Amendment claim. (Doc. 63 in case 1:13cv660 at 22.)
246
As noted above, Intervenor Plaintiffs opted out of participation in
this court’s January 2016 trial on voter ID, electing to rest on the
intent-related ID evidence that was presented at this court’s July 2015
trial.
247
Preventing an individual from registering others to vote has been
recognized as a legally cognizable claim. Coal. for Sensible and Humane
Sols. v. Wamser, 771 F.2d 395, 399 (8th Cir. 1985). Testimony at trial
indicated that individuals worked with high-schoolers to pre-register
them to vote. (E.g., Doc. 329 at 150-51 (Plaintiff Rev. Maria Palmer);
Doc. 337 at 123-31 (Helen Compton).)
But the right to assist in
registration can be no greater than the right of the underlying voters.
Having found that so-called young voters have no right to pre-register,
it follows that any claim by GOTV efforts on their behalf must fail.
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Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 470 of 485
is eligible to register — at age seventeen preceding the primary
for the first general election in which they will be eligible to
vote — North Carolina allows these seventeen-year-olds to register
in the same fashion as all other registrants.
Even without pre-
registration,
Intervenors
with
sufficient time and methods to register other young voters.
North
Carolina
these
also
offers
opportunities
young
voters
provide
the
same
ample
voting
opportunities as every other age group, namely the opportunity to
vote during ten days of early voting, and on Election Day. 248
Plaintiffs have failed to show that this system discriminates based
on age.
In fact, after SL 2013-381, the number of both “young
voter” registrants and actual “young voters” increased from 2010
to 2014 (9.7% to 10.4% registrants; 3.9% to 4.2% voters).
(Def.
Ex. 309 at 77, 78.)
Intervenors’ Twenty-Sixth Amendment claim, therefore, fails
and will be dismissed.
E.
Remedy
Plaintiffs argue that their claims entitle them to various
248
Although the First Circuit expressed some concern in Walgren over the
district court’s finding that the burdens of students “returning during
recess to vote in person or of going through the application and notarial
execution process of absentee voting are insignificant,” 519 F.2d at
1367, that is far from the case here. As noted above, Plaintiffs have
ample voting opportunities that require neither significant travel (as
in returning to school) nor voting by mail. It appears that the First
Circuit’s concern focused on the fact that students in that case had
been away from school when elections were held. Surely, they did not
have an additional ten days of early voting to vote, as here.
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Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 471 of 485
forms
of
relief:
a
permanent
injunction
of
the
challenged
provisions; the appointment of federal election observers through
2019 under § 3(a) of the VRA; and subjecting North Carolina to
pre-clearance through 2023.
(Doc. 346 at 149.)
As a result of
the court’s findings and conclusions, no permanent injunctive or
other relief is warranted.
Following the lifting of the Supreme Court’s stay in this
case, the Fourth Circuit’s pretrial injunction against repeal of
SDR and OOP went into place and has been contemplated by voters
and would-be registrants for the 2016 primary season.
Under
Purcell, the court should not alter election laws too close to an
election.
549 U.S. at 5 (“Court orders affecting elections,
especially conflicting orders, can themselves result in voter
confusion and consequent incentive to remain away from the polls.
As an election draws closer, that risk will increase.”).
Carolina
recently
completed
its
March
15,
primary and other Statewide primary election.
2016
North
presidential
The State’s next
primary election for certain U.S. House districts is currently set
for June 7, 2016.
Because the primary is within weeks of this
decision, the court finds that it may likely be disruptive to
implement the decision as to the SDR and OOP provisions before
that primary. Absentee voting began April 18, and the registration
cut-off is May 13.
Therefore, insofar as Purcell prescribes it,
the court will order the extension of the injunction against repeal
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Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 472 of 485
of SDR and OOP until June 8, 2016, at which time these two voting
mechanisms will be permitted to lapse under SL 2013-381.
III. CONCLUSION
Any restriction on the fundamental right to vote, which is
preservative
Crawford,
553
of
all
U.S.
others,
at
191.
must
be
However,
sufficiently
the
Supreme
justified.
Court
has
admonished that there is a strong presumption that the acts of a
duly-elected legislative body are valid.
United States v. Nat’l
Dairy Prods. Corp., 372 U.S. 29, 32 (1963).
Consequently, “any
time a State is enjoined by a court from effectuating statutes
enacted by representatives of its people, it suffers a form of
irreparable injury.”
New Motor Vehicle Bd. of Cal. v. Orrin W.
Fox Co., 434 U.S. 1345, 1351 (1977).
In the midst of these
competing principles arise the challenges to the changes in the
voting rules in this case.
Not long ago, States observed registration cut-off dates and
made voting available only on Election Day.
Indeed, even today
many States, including New York, one of the Nation’s largest and
portions of which were previously covered by § 5 of the VRA,
continue to do so.
recently become
Yet, by any measure, North Carolina had
progressive
nationally
by
permitting
absentee
voting; in-person voting for up to seventeen days in addition to
Election Day; additional registration after the cut-off, including
up to three days before Election Day; the casting of a ballot on
467
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 473 of 485
Election Day in any unassigned precinct in the voter’s county; and
“pre-registration” by sixteen-year-olds.
were
controversial
when
enacted,
and
Some of these measures
one
—
out-of-precinct
provisional voting — was passed on a purely partisan basis in a
manner designed to gain Democrats electoral victory retroactively.
In 2013, North Carolina retrenched.
Changes to the State’s
election laws were contained in a fifty-seven-page bill, but in
truth only about fifteen pages addressed the provisions at issue
today.
fashion,
prevented
They reduced voting days but extended hours in like
on
the
ground
previous
registration,
on
that
gaming
the
doing
of
the
ground
so
restored
system;
that
fairness
eliminated
experience
and
same-day
showed
that
juxtaposing registration so close to Election Day resulted in the
counting
statutory
of
ballots
mail
by
voters
verification
who
system
later
for
failed
ensuring
the
State’s
eligibility;
required voters to appear on Election Day at their assigned voting
precinct, on the ground that the precinct-based system (on the
authority of the North Carolina Supreme Court) serves recognized
and
legitimate
State
interests;
returned
minors’
registration
eligibility to the age of eligibility, which still allows them to
vote in primaries at age seventeen and is more generous than
required by law; and joined almost half of the Nation’s other
States in passing a form of voter photo ID in furtherance of State
interests
recognized
by
the
Supreme
Court
in
Crawford
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as
legitimate.
Because these provisions, although originally proposed in
separate
bills,
were
consolidated
into
one
bill
considered
together and only after the Supreme Court’s decision in Shelby
County, opponents cried foul and infer racial intent, particularly
given that some of the provisions were used disproportionately by
African Americans.
Proponents argue that the changes were based
on legitimate and substantial concerns of election integrity and
fairness and leave an electoral system that provides generous,
fair, and equal opportunity for voters of all races and ages.
Plaintiffs themselves acknowledge that the removed mechanisms
were “conveniences” and “fail-safes” to the ordinary rules for
voting.
By definition, therefore, any repeal or modification
results in a marginal reduction or modification in options for
those who preferred them.
The question is not what this court
would prefer or find best as a policy matter.
That is the province
of legislatures and executives, both of which represent the will
of the people as elected representatives.
Rather, the question in
this case is whether Plaintiffs have demonstrated that the measures
violate the VRA or the Constitution.
At the preliminary injunction stage, Plaintiffs argued that
the mechanisms were adopted to increase minority participation and
forecast
that
their
elimination
would
result
in
reductions
(indeed, sizeable ones) in African American participation in the
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Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 475 of 485
electoral process.
This court was not persuaded that Plaintiffs
had made a clear showing for relief and denied the request.
On
that record, the Fourth Circuit affirmed in part but directed the
court to enjoin the repeal of same-day registration and out-ofprecinct provisional voting.
However, as a result of the Supreme
Court’s stay of that mandate, the State proceeded under SL 2013381, which provided data from the 2014 general election as to the
actual results of the implementation of the law.
Such data are
precisely the sort of electoral information courts are encouraged
to consider, because they permit an understanding of the effect of
a
law
based
on
“historical
facts
rather
than
speculation.”
Purcell, 549 U.S. at 6 (Stevens, J., concurring).
After twenty-five days of trial and reviewing over 20,000
pages of record and the testimony of over 20 expert and 100 fact
witnesses, and after considerable reflection, the court is in a
position to evaluate the effect of SL 2013-381 based on actual
historical facts, rather than speculation.
The evidence shows that African Americans have fared better
in terms of registration and turnout rates in 2014, after the new
law was implemented, than in 2010, when the old provisions were in
place.
Presently, African Americans hold a commanding lead over
all other races in voter registration (e.g., 91.2% African American
vs. 83.4% white).
Since SL 2013-381 has been in place, African
American turnout not only increased but did so at a greater rate
470
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than that of other groups (including whites).
In fact, the 2014
general election saw the smallest white-African American turnout
disparity in any midterm election from 2002 to 2014.
These facts
may surprise some, including Plaintiffs’ experts (who predicted
the opposite before trial), but the outcomes are less surprising
when one realizes that Plaintiffs were unable to show that the
removed mechanisms were responsible for the greater-than-parity
political participation achieved by African Americans.
there
was
strong
evidence
that
other
factors
Instead,
were
more
substantially at play, such as President Obama’s candidacy and
North Carolina’s emergence as a battleground State.
Contrary to
Plaintiffs’ predictions and somewhat surprisingly, the scholarly
consensus of Plaintiffs’ own experts revealed that early voting
depresses turnout.
Moreover, same-day registration has not been
shown to increase turnout in a statistically significant manner.
Only Election Day registration, which is not at issue here, does.
The 2014 data merely confirm what the remaining data suggest:
that
minorities
enjoy
equal
and
constitutionally-compliant
opportunity to participate in the electoral process.
No doubt,
many variables fed into the 2014 aggregate turnout and registration
data.
But Plaintiffs’ evidence failed to provide anything more
persuasive.
For example, despite having the ability to do so,
Plaintiffs did not perform the type of analysis necessary to
separate out the causal effect of various factors said to drive
471
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 477 of 485
election participation results, which even Plaintiffs’ experts
seemed to agree would be the appropriate analysis to measure the
alleged effects of the measures at issue.
show
that
minorities
the
2014
had
the
results
removed
would
have
mechanisms
Nor could Plaintiffs
been
any
remained
better
in
for
place.
Plaintiffs bear the burden of proof in this case, and Defendants
cannot be blamed for this absence.
Moreover, while the educational and socioeconomic disparities
suffered by African Americans might suggest that the removed
mechanisms
cannot
would
find
an
disproportionately
inequality
of
benefit
them,
opportunity
this
simply
court
because
educational and socioeconomic disparities suggest one might exist
— there must actually be an inequality of opportunity.
LULAC, 999
F.2d at 867 (“[T]he Senate Report, while not insisting upon a
causal
nexus
between
socioeconomic
participation,
clearly
did
not
status
dispense
and
with
depressed
proof
that
participation in the political process is in fact depressed among
minority citizens.”).
The evidence shows that, like all voters,
African Americans are not only capable of adjusting, but have
adjusted, to SL 2013-381.
North Carolina’s ample remaining alternative registration and
voting mechanisms are the likely explanation for this adjustment.
Even after SL 2013-381 as amended, North Carolinians of all races
can register in many convenient ways and can vote by mail, during
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Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 478 of 485
ten days of early voting – now at more sites and at more convenient
hours — or on Election Day at their correct precinct.
It is a
given that government should endeavor to make it as easy as
practicable to exercise the right to vote.
But the fact that
voting can almost always be made easier does not render a State’s
failure to do so, or a State’s repeal of a convenience or “failsafe,” unlawful or unconstitutional per se.
With every relaxation
of the rules there is often an attendant trade-off or effect on
verification and election integrity.
The State demonstrated as
much here.
Same-day registration created administrative burdens that
could not be overcome despite great effort by additional CBOE
staff.
Most importantly, it was incompatible with the State’s
statutory mail verification process for eligibility.
Same-day
registration’s close proximity to Election Day did not just create
a risk that voters would not be mail-verified before the same-day
registrant’s vote was counted, it ensured that a significant number
of ballots (2,361 voters in 2012 alone) would be counted in each
election even though the registrant later failed mail verification
after any challenge could be made.
This may be why most States do
not implement same-day registration.
In any event, other States
use mail verification, and Plaintiffs have not demonstrated that
North Carolina’s historical reliance on it is unreasonable or
reflects a racial bias or result.
Plaintiffs urge that same-day
473
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registration’s requirement that a registrant show a HAVA-compliant
document (showing name and address) is sufficient to protect the
State’s interests, but this ignores the fact that the very voters
about whom Defendants complain did just that yet still failed mail
verification.
As for early voting, the evidence was that the old schedule
had several days with low usage, many counties did not use the
full allotment of days (including Sundays), and sites were placed
inconsistently and based on partisan advantage.
By requiring that
the number of early-voting hours nevertheless remain the same, the
new law creates more early-voting sites and additional night and
weekend hours that are more convenient to workers and lower socioeconomic voters.
The 2014 data proved as much.
With regard to out-of-precinct provisional voting, the trial
evidence demonstrated that voters tended to use it out of added
convenience or inattentiveness to their assigned precinct.
over
100
years,
no
statutorily-provided
opportunity to vote.
one
seriously
precinct
contended
system
that
provided
the
For
State’s
inequality
of
Judged against the immaterial burden of
requiring a voter to cast a ballot in his or her assigned precinct,
and given the benefits of the precinct system recognized by the
North Carolina Supreme Court in James and the Sixth Circuit, this
court cannot say that returning to it (circa 2004) imposes an
unlawful or unconstitutional burden not justified by the benefits.
474
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As for pre-registration, there can be no dispute that allowing
sixteen-year-olds to “pre-register” is not required for equality
of electoral opportunity.
North Carolina already provides ample
time to register and permits even seventeen-year-olds to vote in
the primary before their eligible general election.
Finally, North Carolina’s voter-ID requirement, now with a
reasonable impediment exception, serves legitimate State interests
recognized by the Supreme Court in Crawford without imposing a
material burden on any group of voters.
Plaintiffs’ contention
that North Carolina’s requirement is one of the strictest in the
country ignores the reasonable impediment exception.
If North
Carolina is an outlier, it is because it is one of only two States
in the Nation to accommodate voters who wish to vote in person but
for whatever reason face an impediment to acquiring qualifying ID.
The court’s conclusion is fully consistent with the same finding
of the three-judge court that approved a virtually identical photoID law with reasonable impediment in South Carolina.
898 F. Supp.
2d 30.
In
short,
North
Carolina
has
provided
legitimate
State
interests for its voter-ID requirement and electoral system that
provides registration all year long up to twenty-five days before
an election, absentee voting for up to sixty days before an
election, ten days of early voting at extended hours convenient
for
workers
that
includes
one
Sunday
and
two
Saturdays,
and
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Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 481 of 485
Election Day voting.
Plaintiffs oppose this system because they
preferred one that they say was even more convenient - which they
used disproportionately during certain elections – and point to
some fraction of voters who did not vote or register.
Plaintiffs’
contention that such voters did not do so because of vestiges of
historical official discrimination is rebutted by the facts. There
is strong evidence that some other reason is at play for the
failure
of
these
unprecedented
persons
gains
by
to
African
register
and/or
Americans
in
vote.
The
registration
and
turnout, both during and even in 2014 after SL 2013-381, bolster
this conclusion.
While the consideration is clearly local and
practical in nature, based on North Carolina’s unique facts, it
would no doubt bear relevance if North Carolina were seeking to
return to an electoral system that was not in the mainstream of
other States.
It is not.
For all these reasons, Plaintiffs have failed to demonstrate
that Defendants have violated § 2 of the VRA or the Fourteenth,
Fifteenth,
or
Twenty-Sixth
Amendments
to
the
United
States
Constitution.
For the reasons stated, therefore,
IT IS ORDERED in cases 1:13CV861, 1:13CV658, and 1:13CV660 as
follows:
1.
The United States’ Motion in Limine to Exclude Improper
Expert Opinion Testimony of Brian Neesby, (Doc. 265), the United
476
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 482 of 485
States’ Motion to Strike Certain Testimony of Brian Neesby, (Doc.
326), and
the
NAACP
Plaintiffs’
Motion
in
Limine
to
Exclude
Defendants’ Untimely Discovery Materials,” (Doc. 291), are DENIED
IN PART to the extent the challenged materials are relied upon in
this memorandum opinion and are otherwise DEEMED MOOT.
The Duke
Intervenor-Plaintiffs’ Motion to Strike Brian Neesby’s Testimony
Regarding Mail-Verification Failure Rates Among Preregistrants and
to Exclude Defendants’ Exhibit BN-3, (Doc. 327), need not be
resolved insofar as the court did not rely on this evidence, and
the motion is therefore DEEMED MOOT.
2.
Plaintiffs’ Motion to Strike the Declarations of Sean P.
Trende and Motion to Exclude his Testimony at Trial, (Doc. 271),
is DENIED IN PART to the extent relied upon in this memorandum
opinion and is otherwise DEEMED MOOT.
3.
Plaintiffs’ Motion to Strike the Declarations of Thomas
Brooks Hofeller and Motion in Limine to Exclude his Testimony at
Trial,
(Doc.
273),
is
DEEMED
MOOT
in
light
of
Plaintiffs’
withdrawal of the motion at trial, (Doc. 340 at 140-41).
This
court’s memorandum opinion relied only upon the redacted version
of Dr. Hofeller’s report.
4.
Plaintiffs’
(Def. Ex. 212A.)
Motion
to
Strike
Portions
of
the
Declarations and Motion in Limine to Exclude Certain Testimony of
Dr. Janet Thornton at Trial, (Doc. 275), was granted in part at
trial and otherwise is DENIED to the extent her testimony is relied
477
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 483 of 485
upon in this memorandum opinion.
5.
Defendants’ Motion to Exclude Testimony by the United
States’ Expert, Dr. Charles Stewart, (Doc. 269), was held in
abeyance by Defendants when trial was bifurcated in July 2015,
(Doc. 279), and never renewed.
In any event, it is DENIED, as the
arguments for exclusion have been considered by the court as to
the weight of the evidence.
6.
Defendants’
Motion
in
Limine
to
exclude
certain
testimony of Dr. Allan Lichtman, (Docs. 287), is GRANTED IN PART
AND DENIED IN PART.
Defendants’ motion to exclude Dr. Lichtman’s
supplemental report of June 9, 2015, is DENIED, but the arguments
for
exclusion
evidence.
have
been
considered
as
to
the
weight
of
the
Defendants’ motion to exclude Dr. Lichtman’s matching
analysis is DENIED, but the arguments for exclusion have been
considered as to the weight of the evidence.
Defendants’ motion
to exclude certain emails is GRANTED as to the truth of the matter
asserted
on
the
ground
of
hearsay
and
is
otherwise
DENIED.
Defendants’ motion to exclude certain conclusions by Dr. Lichtman
as to discriminatory intent is GRANTED for the reasons addressed
in this memorandum opinion.
Defendants’ objection to certain
newspaper articles relied upon by Dr. Lichtman was sustained at
trial.
(Doc. 333 at 154-55.)
7. Defendants’ motion to exclude rebuttal testimony of Dr.
Lichtman, (Doc. 342 at 186-90; Docs. 324, 325), is GRANTED as to
478
Case 1:13-cv-00658-TDS-JEP Document 439 Filed 04/25/16 Page 484 of 485
mail verification rates for 2014, (see Doc. 325 at 9-12), and is
otherwise DENIED.
IT IS FURTHER ORDERED that in cases 1:13CV861, 1:13CV658, and
1:13CV660 all claims of Plaintiffs and Plaintiff-Intervenors are
DISMISSED WITH PREJUDICE and judgment shall be entered in favor of
Defendants, but that this court’s injunction against the repeal of
same-day
registration
and
out-of-precinct
provisional
voting
entered October 3, 2014, at the direction of the Fourth Circuit,
(Doc. 189), (which was thereafter recalled by the Fourth Circuit
until May 5, 2015) shall remain in effect until June 8, 2016, under
the Purcell doctrine.
Any motion for recovery of costs and/or attorneys’ fees shall
be governed by the Federal Rules of Civil Procedure, this court’s
Local Rules, and any other applicable rule.
An appropriate Judgment will be entered separately.
/s/
Thomas D. Schroeder
United States District Judge
April 25, 2016
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